Full Judgment Text
Judgment wp4198.00 & ors.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
WRIT PETITION NOs. 4198/2005, 564/2009, 804/2002,
2054/2004, 4875/2004, 619/2005, 620/2005, 6026/2005,
3024/2002, 5718/2004, 2352/2002, 5817/2004, 3605/2004,
4099/2005, 1494/2004, 726/2004, 1553/2004, 4186/2007,
2516/2004, 2959/2002, 2918/2004, 3121/2002, 1838/2002,
2489/2004, 2960/2002, 3227/2004, 3387/2002, 3185/2004,
4105/2002, 3389/2002, 4751/2004, 6457/2006, 4069/2004,
957/2002, 2432/2010, 1000/2010, 3287/2002, 4714/2004,
6104/2004, 2341/2005, 2912/2004, 447/2002, 2596/2004,
2595/2004, 3216/2004, 2889/2002, 2890/2002 & 446/2002.
…...........
WRIT PETITION NO. 4198 OF 2005.
Ku. Chhaya d/o Jasvantsingh Hajari,
(Nee Sou. Chhaya Brajendrasingh Thakur)
Aged about 42 years, Occupation – Service,
resident of plot no.25, Virat Nagar,
Behind DMRL, Hyderabad 500 079
(Andhra Pradesh). ... PETITIONER.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Tq. And District
Amravati.
2. The State of Maharashtra,
through its' Secretary,
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Department of Tribal Development
Mantralaya, Fort,
Mumbai – 400 032.
3. Indian Bureau of Mines,
Indira Bhawan, Civil Lines,
Nagpur – 400 001
through its Controller General. ... RESPONDENTS .
Shri A.M. Gordey, Senior Advocate with Ms. Raskar, Advocate
for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri S.A. Chaudhari, Advocate for Respondent No.3.
WITH
WRIT PETITION NO. 564 OF 2009.
Sangita d/o Ramkrishna Thakur,
Aged about 30 years, Occupation – Service,
resident of Deepali Nagar, Jalam Road,
Khamgaon. ... PETITIONER.
VERSUS
1. The Scheduled Tribe Caste
Certificate Scrutiny Committee
Irwin Chowk,
Amravati.
2. The Superintendent of Posts Offices,
Buldhana Division, Budhana. ... RESPONDENTS .
Shri R.S. Parsodkar, Advocate for the Petitioner.
Assistant Government Pleader for Respondent No. 1.
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WITH
WRIT PETITION NO. 804 OF 2002.
Sunilkumar Rameshwar Gathe,
Age 26 years, Occupation – Nil,
resident of at and PO Asalgaon,
Tq. Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
Department of Tribal Welfare,
Mantralaya, Mumbai,
[Copy to be served on Govt.
Pleader, High Court Building,
at Nagpur].
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman.
3. the Sub Divisional Officer,
Jalgaon Jamod, District Buldhana.
4. The Maharashtra State Electricity
Board, through its Superintending Engineer,
[Sanchalan and Suwyawstha Mandal]
Vidyut Bhavan, Chikhli Road,
Buldhana, District Buldhana.
5. The Collector,
Collectorate, Buldhana. ... RESPONDENTS .
Shri R.S. Parsodkar, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3 and 5
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WITH
WRIT PETITION NO. 2054 OF 2004.
Bhalchandra s/o Rameshwar Gathe,
Age Adult, Unemployed,
resident of Village Asalgaon (Bazar)
Tq. Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai – 32.
2. The Scheduled Tribe Caste
Certificate Verification Committee
Amravati Division, Amravati,
Through its Chairman/Director.
3. The Chief Executive Officer,
Zilla Parishad, Buldhana,
District Buldhana. ... RESPONDENTS .
Shri R.S. Parsodkar, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Mrs. Indira Bodade, Advocate for Respondent No. 3
WITH
WRIT PETITION NO. 4875 OF 2004.
Sanjay s/o Shankarrao Pawar,
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Aged about 30 years, Occupation – Service,
resident of Satefal, Tq. Ner,
District Yavatmal. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Department of Tribal Welfare,
Mantralaya, Mumbai,
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman.
3. The Tahsildar, Tahsil Office,
Ner, Tal. Ner, District Yavatmal.
4. Block Development Officer,
Panchayat Samiti, Ner, Tq. Ner,
District Yavatmal.
5. Collector, Yavatmal,
District Yavatmal. ... RESPONDENTS .
Shri A.J. Gilda, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents
WITH
WRIT PETITION NO. 619 OF 2005.
Ku. Jyoti d/o Tulsiramji Donge,
Aged about 35 years, Occupation – Service,
resident of Jalgaon Jamod,
District Buldhana. ... PETITIONER.
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VERSUS
1. Municipal Council, Jalgaon Jamod,
District Buldhana,
through its Chief Officer.
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati. ... RESPONDENTS .
Ms. P. Rane, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No. 2.
WITH
WRIT PETITION NO. 620 OF 2005.
Ashok s/o Wasudeo Gathe,
Aged about 39 years, Occupation – Service,
resident of Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. Divisional Controller,
Maharashtra State Road Transport
Corporation, Buldhana.
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati. ... RESPONDENTS .
Ms. P. Rane, Advocate for Petitioner.
Shri S.C. Mehadia, Advocate for Respondent No.1.
Ms. N.P. Mehta, A.G.P. for Respondent No.2.
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WITH
WRIT PETITION NO. 6026 OF 2005.
Ku. Kalpana d/o Pralhad Gathe,
Age about 33 years, Occupation – Nil,
resident of Asalgaon,
Tq. Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through the Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
2. The Scheduled Tribe Caste
Certificate Verification Committee,
through nit's Chairman/Director,
Amravati Division, Amravati. ... RESPONDENTS .
Ms. P.D. Rane, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents
WITH
WRIT PETITION NO. 3024 OF 2002.
Digambar son of Manohar Dahake
(Dead through L.Rs.)
1. Pravina Digambar Dahake,
Aged about 41 years, resident of
Bhaji Bajar, Amravati
Occupation – Housewife.
2. Samrudhi Digambar Dahake,
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aged about 16 years, Occupation – Student,
r/o. Bhaji Bazar, Amravati.
3. Sanskruti Digambar Dahake,
aged about 8 years, Occupation – Student,
r/o Bhaji Bazar, Amravati. ... PETITIONERS.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman.
2. Amravati Municipal Corporation,
through its Municipal Commissioner,
Amravati.
3. State Election Commissioner,
Mumbai, Administrative Building
Opp. Mantralaya, Mumbai 400 032.
4. State of Maharashtra,
through Secretary,
Urban Development Department,
Mantralaya, Mumbai 400 032. ... RESPONDENTS .
Shri R.M. Ahirrao, Advocate for Petitioners.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 4.
Shri M.K. Pathan, Advocate for Respondent no.2
Mrs. T.D. Khade, Advocate for Respondent No.3.
WITH
WRIT PETITION NO. 5718 OF 2004.
Ku. Nalini d/o Dhyaneshwarao Tayade
(Sou. Nalini w/o Pradip Khare)
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Aged about 42 years, Occ – Service,
resident of Satephal, Tq. Ner,
District Yavatmal. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman, Irvin Square,
Amravati.
2. Zilla Parishad, Yavatmal,
through its Chief Executive Officer,
Yavatmal. ... RESPONDENTS .
Shri M.I. Dhatrak, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No. 1.
WITH
WRIT PETITION NO. 2352 OF 2002.
Santosh Atmaram Morey
Aged about 35 years, Occu – Service,
resident of IUDP Colony
Washim, District Washim. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through Ministry of Home Affairs,
through its Secretary,
Mantralaya, Mumbai – 400032.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Through its Dy. Director,
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Amravati.
3. Superintendent of Police, Washim.
4. Director General of Police,
having Office near Regal Theatre,
Kulaba, Mumbai. ... RESPONDENTS .
Shri S.P. Palshikar/N.C. Phadnis, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 5817 OF 2004.
Amol s/o Digambar Chavan
Aged about years, Occupation Student,
resident of Hanuman Nagar,
Nanded. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through Ministry of Tribal Development,
Mantralaya, Mumbai – 400 032.
through its Secretary.
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Secretary.
3. Principal, Guru Govindsingh College
of Engineering, Nanded. ... RESPONDENTS .
Mrs. R.V. Sirpurkar, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
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WITH
WRIT PETITION NO. 3605 OF 2004.
Dr. Pramod s/o Ambadas Wankhede,
Aged about 42 years, Occupation
Medical Practitioner, resident of
Khopoli, Tq. Kholapur,
District Raigadh. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai – 32.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati Division, Amravati,
Through its Deputy Director (R)
and MemberSecretary, having
its office at Amravati,
District Amravati. ... RESPONDENTS .
Shri Gopal Mishra, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 4099 OF 2005.
Madansingh Karansingh Thakur,
Aged about 44 years, Occupation
Service, resident of Balapur,
Tq. Balapur, District Akola. ... PETITIONER.
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VERSUS
1. The State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai – 32.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati Division, Amravati,
Through its Deputy Director
and MemberSecretary. ... RESPONDENTS .
Shri S.V. Sohoni, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 1494 OF 2004.
Ganesh s/o Krushnarao Bayaskar,
Aged about 31 years, Occupation
Service, resident of Mr. Mahurkar's
Flour Mill, Hanuman Nagar,
Chhoti Umari, Akola 444 005. ... PETITIONER.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati
2. The Deputy Director of Education,
Amravati Region, Amravati. ... RESPONDENTS .
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Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 726 OF 2004.
Ku. Pushpashila d/o Punjabrao Bhuyar,
Aged 35 years, Occupation
Service, [presently working as
Postal Assistant in the office of
Sr. Superintendent of Post Office,
Nagpur], resident of Tahsil and
District Nagpur (Maharashtra). ... PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Department of Tribal Development,
Mantralaya, Mumbai – 32.
2. The Chairman and the Dy. Director,
Scheduled Tribe Caste Scrutiny
Committee, Giripeth,
Nagpur (MS).
3. Sr. Superintendent of Post Offices,
Nagpur MFL Division,
Nagpur (MS). ... RESPONDENTS .
Shri H.D. Dangre, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri R.S. Sundram, Advocate for Respondent No.3.
WITH
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WRIT PETITION NO. 1553 OF 2004.
Ku. Parinita Vinayakrao Shankhpal (Thakur)
Aged about 26 years, Occupation
Student, resident of Vakratund Apartments,
nd
2 Floor, Amrut Nagar, Jalamb Road,
Khamgaon, Taluq Khangaon,
District Buldhana. ... PETITIONER.
VERSUS
Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Near Irwin Chowk,
Morshi Road, Amravati. ... RESPONDENT .
Shri A.P. Kalmegh, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent.
WITH
WRIT PETITION NO. 4186 OF 2007.
Rupesh s/o Tulshiram Suryawanshi,
Aged about 22 years, Occupation
Student, resident of Behind Bombay
Dying, at Post Murtizapur,
District Akola. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
2. The Scheduled Tribe Caste
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Certificate Verification Committee,
Through its Chairman/Director,
Amravati Division,
Amravati. ... RESPONDENTS .
Shri V.R. Choudhari, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 2516 OF 2004.
Nitinkumar Bhagwat Thakur
Aged about 26 years, Occupation – nil,
resident of PO Daserkhed, Tq. Malkapur,
Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
Through the Secretary,
Tribal Development Department
Mantralaya, Mumbai.
2. The Scheduled Tribe Caste
Certificate Verification Committee,
Through its Chairman/Director,
Amravati Division, Amravati.
3. The Chief Executive Officer
Zilla Parishad,
Buldhana. ... RESPONDENTS .
Shri A.P. Kalmegh Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
None for Respondent no.3Served.
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WITH
WRIT PETITION NO. 2959 OF 2002.
Vivek s/o Vinayakrao Bhuyar,
Aged about 24 years, Occupation – Student,
resident of Bhartipura, Karanja Lad,
Distt. Washim. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims,
through its Dy. Director,
Amravati.
2. Principal, College of Engineering,
V.Y.M.S. Badnera, Amravati. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No. 1.
None for respondent no.2 – served.
WITH
WRIT PETITION NO. 2918 OF 2004.
Aditya S/o Anil Wardekar
Aged about 16 years,
Being minor through legal guardian father
Shri. Anil S/o Marotrao Wardekar
Aged about 45 years, Occupation – Service,
resident of Mangrulpir, Tal. Mangrulpir,
Dist. Washim ... PETITIONER.
VERSUS
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1. State of Maharashtra,
Through the Secretary,
Tribal Development Department
Mantralaya, Mumbai – 32.
2. Caste Scrutiny Committee for
Scheduled Tribe
Through its Presiding Member and
Additional Commissioner, Tribal
Development Department,
Amravati. ... RESPONDENTS .
Shri V.R. Choudhary, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3121 OF 2002.
Ku. Vandana d/o Devidas More,
Aged about 19 years, Occupation – Service,
resident of Chandur Khadki,
Tah. Akola. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of tribe claims,
through its Dy. Director,
Amravati
2. Civil Surgeon
Office of District Civil Surgeon
Akola. ... RESPONDENTS .
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Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 1838 OF 2002.
Dilip Vishwanath Dongre
38 years, (Service in State
Bank of India, Branch at
Shegaon, Dist. Buldhana ... PETITIONER.
VERSUS
1. Committee of Scrutiny and caste verification
of Tribe Claims, Amraoti.
2. State of Maharashtra through Secretary,
Social and welfare Deptt., Mantralaya,
Bombay32.
3. Branch Manager, State Bank of India,
Branch at Shegaon, Distt. Buldhana ... RESPONDENTS .
Shri P.S. Jaiswal, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
None for respondent no.3 – served.
WITH
WRIT PETITION NO. 2489 OF 2004.
Prakash Waman Ingale
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Aged 46 years, Occupation – Service,
resident of Shegaon,
Dist. Buldana ... PETITIONER.
VERSUS
1. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati
2. Dy. Director, Vocational and Training,
Regional Office, Amravati. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 2960 OF 2002.
Ku. Bhagyashri d/o Vinayakrao Bhuyar
Aged about 24 years, Occupation – Student,
resident of Bhartipura, Karanja Lad,
Dist. Washim ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of tribe claims
through its Dy. Director, Amravati
2. Principal, District Education &
Training Institute, Akola.
3. Director, Maharashtra State Council
of Education Research and Training,
Pune.
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4. Commissioner, Maharashtra State
Examination Board, Pune. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1
Shri Anand Parchure, Advocate for Respondent No.4
WITH
WRIT PETITION NO. 3227 OF 2004.
Rajesh S/o Jagatpalsingh Gaur
Aged about 42 years,
resident of C/o Shri. M.M. Chauhan, 43,
Samarth Nagar (East), Behind FCI Godown,
Nagpur (presently working as Motor Vehicle
Inspector posted at Thane) ... PETITIONER.
VERSUS
1. State of Maharashtra through
Secretary, Ministry of Transport
Department, Mantralaya, Mumbai – 400032.
2. Committee for Scrutiny and
Verification of Tribe Claims, Amravati,
through its Deputy Director, Irvin square,
Amravati.
3. Commissioner of Transport
(Maharashtra State) office of the
Commissionarraite, New Administrative Building,
Government Colony, Bandra (East),
Mumbai ... RESPONDENTS .
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Shri N.C. Phadnis, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3387 OF 2002.
Subhash s/o Manikrao Ingle
Aged about 40 years, Occupation – Service,
resident of Upper wardha canal
Sub division No.3, Kurha,
Dist. Amravati. ... PETITIONER.
VERSUS
1. State of Maharashtra,
Through its Secretary,
Irrigation Department
Mantralaya, Mumbai – 32.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3185 OF 2004.
Ku. Jyoti Sugdeo Tayade
Aged about 31 years, Occupation – Service,
resident of Ganeshnagar,
Dist. Amravati ... PETITIONER.
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VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims, Amravati
through its Chairman.
2. The Municipal Council, Daryapur,
through its Chief Officer ... RESPONDENTS .
Shri A.M. Ahirrao, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1.
Shri S.M. Puranik, Advocate for Respondent No.2.
WITH
WRIT PETITION NO. 4105 OF 2002.
Ku. Seema Sudhakar More
Aged about 22 years, Occupation – Student,
resident of Waqad, Taluq Risod
District Washim ... PETITIONER.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribal Claims,
Adivasi Bhawan, Giripeth, Nagpur
through its chairman
2. Principal, Govt. Jr. College of Education,
Yavatmal, Taluq and District
Yavatmal. ... RESPONDENTS .
Shri R.M. Ahirrao Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
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WITH
WRIT PETITION NO. 3389 OF 2002.
Varsha d/o Narayan Bayaskar
Aged about 18 years, Occupation – Education,
resident of Rajanda, Th. Barshi Takli,
Dist. Akola ... PETITIONER.
VERSUS
1. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati
2. Director of Medical Education
and Research, Maharashtra State,
Saint George Hospital Compound,
Dental College Bldg. Fort, Mumbai. ... RESPONDENTS .
Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 4751 OF 2004.
Ku. Jyostna d/o Ramdas Pawar
Aged about 35 years, Occupation – Service,
resident of Wardha
Distt. Wardha ... PETITIONER.
VERSUS
1. The Committee for Scrutiny &
Verification of Tribe Claim,
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Amravati
2. Education Officer,
Zilla Parishad, Wardha ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1.
Shri P.D. Meghe, Advocate for Respondent no.2.
WITH
WRIT PETITION NO. 6457 OF 2006.
Ajay Jawaharlal Channor
Aged about 27 years, Occupation – Business,
resident of Opp. Union Bank, Mahesh Nagar,
Shanti Nagar Road, Nagpur
(Presently elected Corporation from
Prabhag No.18 of Nagpur Municipal
Corporation) ... PETITIONER.
VERSUS
1. State of Maharashtra through its
Secretary, Ministry of Tribal Welfare
Department, Mantralaya, Mumbai – 400032.
2. Scheduled Tribe Caste Certificate
Scrutiny Committee, Nagpur Division,
Adivasi Vikas Bhavan, Giripeth, Nagpur
through its Vice Chairman/Joint Commissioner.
3. Collector, Nagpur
4. Municipal Commissioner, Nagpur
Municipal Corporation, Civil Lines,
Nagpur
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5. State Election Commission, New
Administrative Building, Mantralaya,
Madam Cama Road, Mumbai. ... RESPONDENTS .
Shri N. Phadnis, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3.
Shri M.V. Samarth for Respondent No.4.
WITH
WRIT PETITION NO. 4069 OF 2004.
Santoshkumar Rameshsing Thakur
Aged about 35 years, Occupation – nil,
resident of Ramnagar,
Akola ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary, Tribal
Development Department, Mantralaya,
Mumbai – 32.
2. The Scrutiny Committee for
verification of Caste Certificates
of Scheduled Tribes and Scheduled
Castes, Amravati Division, Amravati,
through its Member secretary.
3. Akola Municipal Corporation, Akola
through its commissioner.
4. The Tahsildar, Akola ... RESPONDENTS .
Shri S.G. Joshi Advocate for Petitioner.
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Ms. N.P. Mehta, A.G.P. for Respondent No. 1, 2 and 4
Shri Kiran Malokar, Advocate for Respondent Nos. 3.
WITH
WRIT PETITION NO. 957 OF 2002.
Ku. Arati S/o Gajanan Ingale
Aged about 19 years, Occupation – Student,
resident of Gopalkhed, Post Gandhigram,
Tahsil & District Akola ... PETITIONER.
VERSUS
1. The Scrutiny Committee for Verification
of Tribe Claim, through its Dy. Director
Amravati.
2. Principal, Govt. Junior College of
Education for Women, Akola
3. Commissioner, Maharashtra State
Education Board, Pune. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri. A. Parchure, Advocate for Respondent No.3
WITH
WRIT PETITION NO. 2432 OF 2010.
Meena d/o Shivraj Payak
Aged about 39 years, Occupation – Service
as Clerk with Respondent no.3,
Resident of Near Sheetala Mata Mandir,
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Kham Talao, Bhandara. ... PETITIONER.
VERSUS
1. State of Maharashtra, through its
secretary, Tribal Welfare Department,
Mantralaya, Mumbai 400032
2. Scheduled Tribe Certificate Scrutiny
Committee, Nagpur Division, Nagpur,
Adivasi Vikas Bhavan, Giripeth,
Nagpur through its Vice Chairman
3. Bhandara Urban CoOperative Bank
Limited, Gandhi Square, Bhandara,
Tahsil and District Bhandara through
its Chief Executive Officer. ... RESPONDENTS .
Shri N.C. Phadnis Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri Paliwal, Advocate for Respondent No.3.
WITH
WRIT PETITION NO. 1000 OF 2010.
Kishor S/o Rameshwar Thakur
Aged about 21 years, Occupation – Student,
Resident of Raigad Colony, Near Grain Market
Vishnuwadi, Buldhana
Tahsi – Buldhana, District Buldhana ... PETITIONER.
VERSUS
1. Committee for Scrutiny and Verification
of Tribe Claim Through its Chairman
Committee For Scheduled Tribe Claim
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Irvin Chowk, Amravati, District – Amravati
2. State of Maharashtra
Through its Secretary
Education Department,
Mantralaya, Mumbai.
3. The Directorate of Technical Education
Maharashtra State, Mumbai
3, Mahapalika Marg, Post Box No.1967,
Mumbai 400001
4. The Principal
MIT College of Enginering,
Kothrud, Pune 411029
5. The Registrar,
Pune University, Pune
Pune University Road,
Pune 411038 ... RESPONDENTS .
Shri R.P. Dhanwat Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3.
WITH
WRIT PETITION NO. 3287 OF 2002.
Deepak S/o Chandraprakash Thakur
Aged about 20 years, Occupation – Student,
resident of Yashoda Nagar N.II,
Amravati ... PETITIONER.
VERSUS
1. State of Maharashtra
Department of Tribal Development,
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Mantralaya, Mumbai.
Through Secretary
2. Committee For Scrutiny and Verification
of Tribe Claims, Amravati.
Through Member Secretary
3. Government College of Engineering,
Amravati, through its principal ... RESPONDENTS .
Shri A.Y. Kapgate Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 4714 OF 2004.
Hemlata Shamrao Kadam
@ Hemlata Pradip Bhuyar
Age 41 years, Occupation – Service,
Resident of N6, Telcom Society, Plot no.52,
Bajrang Chowk, CIDCO,
Aurangabad ... PETITIONER.
VERSUS
1. The State of Maharashtra
through it's Secretary,
Tribal Welfare Department,
Mantralaya, Mumbai.
2. Chairman, Committee for
Scrutiny & verification of Tribes
Claim, Amravati.
3. Sub Divisional Magistrate Karanja,
Dist. Akola
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4. Education Officer, Municipal Corporation,
Aurangabad.
5. Dy. Commissioner Municipal
Corporation, Aurangabad ... RESPONDENTS .
Shri A.M. Kukday, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3
Shri M.V. Samarth Advocate, for Respondent Nos.4 & 5.
WITH
WRIT PETITION NO. 6104 OF 2004.
Miss Pooja D/o Chndraprakash Thakur
Aged about 17 years, Occupation – Student,
Through her Natural Guardian Mother
Smt. Rajani Wd/o Chandraprakash Thakur,
Aged about 47 Years, Occupation – Service,
Resident of Yashoda Nagar, Amravati
Tq. and Distt. Amravati ... PETITIONER.
VERSUS
1. The Committee for Scrutiny &
Verification of Tribe Claim,
Amravati Division, Amravati
Tq. and Distt. Amravati
2. The State of Maharashtra,
Through Its Secretary,
Department of Tribal Development,
Mantralya, Fort, Mumbai 400032
3. Maharashtra State Education Research
and Training Council, Pune
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4. The Principal, Maharashtra Cosmopolitan
Education Society, camp Pune1 ... RESPONDENTS .
Shri S.A. Gordey, Senior Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
WITH
WRIT PETITION NO. 2341 OF 2005.
Satish Suryakant Suradkar
Aged about 25 years, Occupation – presently nil,
resident of Shivshankar Nagar,
Chikhali Road, near Shree Provigence,
Taluka Buldana, District Buldana ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary, Tribal
Development Department,
Mantralaya, Mumbai32.
2. Committee for Scrutiny & Verification
of Tribe Claims, Amravati
through its Chairman.
3. The Collector, Buldhana.
4. The Sub Divisional Magistrate,
Buldana. ... RESPONDENTS .
Shri S.G. Joshi, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
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WITH
WRIT PETITION NO. 2912 OF 2004.
Vinod S/o Rangnath Shinde
Aged about 27 years, Occupation – Nil,
resident of Gajanan Apartment, Tapdiya Nagar,
Akola ... PETITIONER.
VERSUS
1. State of Maharashtra, through
its secretary, Tribal Welfare Department,
Mantralaya, Mumbai32.
2. The Chairman, Committee for Scrutiny
& verification of Tribe Claims, Amravati.
3. Chief Executive Officer, Zilla Parishad, Akola
4. Sub Divisional Officer, Akola
District. Akola ... RESPONDENTS .
Shri S.G. Joshi Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 2 & 4.
Shri D.K. Dubey, Advocate for Respondent No. 3.
WITH
WRIT PETITION NO. 447 OF 2002.
Vijay S/o Ramchandra Chavan
Aged about 34 years, Occupation – Service,
resident of Zilla Parishad Primary
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Marathi School, Umbra Kapsi,
Tahsil & Distt. Washim. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims
Through it's Dy. Director,
Irvin Chowk, Amravati
2. Zilla Parishad, Washim,
Through its Chief Executrive Officer,
Washim, Distt. Washim. ... RESPONDENTS .
Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent no.1.
Mrs.Indira Bodade Advocate for Respondent No.2.
WITH
WRIT PETITION NO. 2596 OF 2004.
Mangesh s/o Krushnarao Peshave
Aged 34 years, Occupation – Service,
resident of Pimple Nagr, Ranpise Nagar,
Dist. Akola ... PETITIONER.
VERSUS
1. The Collector, Akola Revenue Deptt.
Akola
2. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati. ... RESPONDENTS .
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Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 2595 OF 2004.
Pravin S/o Laxmikant Pise
Aged about 35 years, Occupation – Service,
resident of Shaniwarpura, Akot, Tq. Akot,
District Akola ... PETITIONER.
VERSUS
1. The Deputy Director of Education,
Amravati Region, Walgaon Road,
Amravati
2. Committee for Scrutiny & Verification
of Tribe Claim, Amravati ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3216 OF 2004.
Kailash Samadhan alias Devidas Nemade
Aged 31 years, Occupation – Service,
resident of Shegaon,
Distt. Buldhana ... PETITIONER.
VERSUS
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1. The Municipal Council,
Shegaon, Distt. Buldhana
Through its Chief Officer.
2. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati. ... RESPONDENTS .
Shri S.Z. Sonbhadre Advocate for Petitioner.
Shri N.R. Saboo, Advocate for Respondent No.1.
Ms. N.P. Mehta, A.G.P. for Respondent No. 2.
WITH
WRIT PETITION NO. 2889 OF 2002.
Ku. Nandiny d/o Sudhakar Nemade
Aged about 20 years, Occupation – Student,
resident of C/o Regional Workshop,
Khadki, At Akola Dist. Akola ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims
through its Dy. Director,
Amravati.
2. Project Officer, Integrated Tribal
Development Project, Akola
3. The Director, Maharashtra State
Council of Education Research
and Training, Pune. ... RESPONDENTS .
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Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
WITH
WRIT PETITION NO. 2890 OF 2002.
Ku.Vaishali d/o Ramkrushna Pawar
Aged about 19 years, Occupation – Student,
resident of Jalpurna Rest House, Patbandhre
Vasahat, Akola, Dist. Akola ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims
Through its Dy. Director,
Amravati.
2. Principal, Govt. D. Ed. (Girls) College, Akola.
3. Commissioner, Maharashtra State
Examination Board, Pune. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri Anand Parchure, Advocate for Respondent no.3.
AND
WRIT PETITION NO. 446 OF 2002.
Devidas Pralhad Gaikwad
Aged about 31 years, Occupation – Nil,
Resident of Ukadi, Tahsil Mehkar
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District Buldhana ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims through
its Dy. Director, Irvin Chowk, Amravati
2. Maharashtra State Electricity
Board, through its Executive
Engineer, M.S.E.B. Buldhana
Buldhana ... RESPONDENTS .
Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1.
Shri. S.V. Purohit, Advocate for Respondent No. 2.
CORAM : B.P. DHARMADHIKARI
AND Z.A. HAQ, JJ.
DATE OF RESERVING JUDGMENT : 07.06.2018.
DATE OF PRONOUNCEMENT : 01.08.2018.
JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
All these matters are placed together jointly for
consideration, as according to all petitioners, question involved is –
When preconstitution documents record the Caste as “Thakur” and
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those documents are genuine, whether the recourse to affinity test is
open? They rely upon the judgment of Hon'ble Supreme Court in
case of Anand .vrs. Committee for Scrutiny and Verification of
Tribe Claims and others (2011 (6) Mh.L.J. 919) , to buttress their
submissions. On the other hand, respondents contend that a Caste
by name “Thakur” exists and said Caste is not a Tribe, and is also
not recognized as Scheduled Caste. It is an Upper Caste and hence,
the old documents or relevance of and reliance upon mention of
Caste as Thakur, therein is not decisive. As the Tribe and Caste have
same name, only way left out is to apply affinity test. AGP's
appearing on behalf of respondent State, state that the judgment of
Hon'ble Supreme Court in case of Anand (supra), does not rule out
relevance and use of affinity test in such facts.
2. In Writ Petition No. 4198/2018, Senior Counsel Shri A.M.
Gordey, appearing on behalf of the petitioner by inviting attention
to the impugned order dated 15.07.2005, submits that in paragraph
no.2 it has looked into old documents like dated 25.06.1928,
03.07.1968 and few other documents. None of these documents are
found to be interpolated. In this situation, recourse to affinity test
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was not warranted and validity ought to have been given. He has
also placed reliance upon observations contained in judgment in case
of Kumari Madhuri Patil and another .vrs. Addl. Commissioner,
(supra), (Paragraph nos. 13[5] and [6]). According to him, the
Vigilance Cell/Research Officer and the Scrutiny Committee in
present matter have breached these directions of Hon'ble Supreme
Court. Vigilance Cell Authorities recorded statement of
neighbours/tenants who allegedly deposed that the petitioner
belong to Rajput caste. A statement of aunt and a friend also came
to be recorded, but, then the Research Officer did not accompany
the Vigilance Cell Squad at that juncture. Traits needed to be
ascertained from some elderly member from the family. Aunt
Krantidevi does not have cordial relations due to a dispute and
therefore, has deliberately deposed against the petitioner. In any
case, old customs like Ghungat, etc., are not decisive in modern
times. Petitioners' say on police vigilance clarified these aspects, but,
it has been ignored. The home enquiry is, therefore, alleged to be
incomplete.
3. It is contended that though traits and customs which have
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come on record are rejected by the Scrutiny Committee, material
looked into by it does not show why it could not have been
accepted. The standard traits of Thakur Scheduled Tribe, if any, are
absent on record. Our attention is also invited to the fact that son of
Aunt Krantidevi by name Vikrant has recorded his caste as Thakur
only on 10.07.1989. The caste of aunt Krantidevi is also recorded as
Thakur on 30.06.2003. Observations of the Hon'ble Supreme Court
in Anand .vrs. Scrutiny Committee (supra), in paragraph nos. 18 to
20, are relied upon to demonstrate how Vigilance Cell report and
traits in this situation needs to be discarded.
4. Ms. Mehta, learned A.G.P. appearing for respondent has
submitted that the petitioner Ku. Chhaya, is upper caste Thakur and
as such mention of caste in her old documents or documents of her
ancestors, is not decisive. Hence, affinity test was must. Chhaya,
was given sufficient opportunity and her reply after show cause
notice on vigilance cell report has been considered. She relies upon
judgment delivered at Aurangabad in case of Monika d/o Satish
Thakur .vrs. State of Maharashtra and others (supra), to urge that
contentions raised by learned Senior Counsel are erroneous and
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unsustainable.
5. Shri N.C. Phadnis, learned counsel appearing for
petitioner in Writ Petition No. 7/2014 had read out the judgment
delivered at Bombay on 22.12.2017 (22.11.2017) in case of Motilal
Namdeo Pawar .Vrs. Scheduled Tribe Scrutiny Committee (supra),
particularly paragraph nos. 1, 12 and 16. He argues that this
judgment clinches the controversy.
6. Shri Parsodkar, learned counsel appearing for petitioner
in Writ Petition No. 564/2009, submits that petitioner d id not get
any effective opportunity as she was unwell. Total 22 documents
were relied upon and though all of them are genuine, the affinity
test has been resorted to. Customs and traits brought on record
have been brushed aside as bookish knowledge and erroneously
“area restriction” has been used to the prejudice of the petitioner.
He submits that as per the information received by petitioner on
01.07.2006, the Scrutiny Committee does not have authentic traits
or customs of Thakur Scheduled Tribe to transparently apply affinity
test.
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7. Shri Parsodkar, learned counsel submits that Writ Petition
Nos.804/2002 and 2054/2002 are by brothers and in identical
fashion, documents have been discarded and affinity favoured. The
validities produced on record of cousin Rajendra and aunt Sheela
have thus been arbitrarily overlooked. He relies upon the family
tree to press relationship with them. The law laid down by this
Court and pointed out to the Scrutiny Committee has been
overlooked. Incident of Totaram Thakur and certificate dated
17.04.1919 and other certificate dated 05.01.1942 establish tribe to
be Thakur only. He fairly states that document dated 05.01.1942 is
not before the Scrutiny Committee. He has drawn attention to the
judgments to demonstrate how entry No.18 pertaining to Gond has
been construed by the Hon'ble Supreme Court in case of Mana Adim
Jamat Mandal .vrs. State of Maharashtra and others (supra). To
challenge finding of upper caste, he places reliance upon judgment
in case of Narendra Dhudku Thakur .vrs. Scheduled Tribe Certificate
Scrutiny Committee, Pune and others (supra). Judgment delivered
by the Division Bench of this Court in Writ Petition No. 4869/2012
in 27.09.2013 (paragraph nos. 3,5,6 and 7) and dated 08.03.2012
in Writ Petition No. 11241/2012 (paragraph no.4), are also relied
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upon by him.
8. He points out previous adjudication and validity and its
consideration in Writ Petition No. 6356/2014 decided on
25.04.2015. He submits that Special Leave Petition against it is
rejected. The judgment of Hon'ble Supreme Court dated 08.03.2017,
is relied upon to point out how “area restrictions” after 1976
amendment, lost its significance. Judgments in case of (1)Sonak
Bakade .vrs. Joint Commissioner and Vice Chairman and others
(supra) (paragraph no.7), (2) Chandrashekhar Gaikwad .vrs. State
of Maharashtra and others (supra) (paragraph no.12) and Narendra
Balaji Ghodmare .vrs. Scheduled Tribe Certificate Scrutiny
Committee, Gadchiroli and others (supra) (paragraph nos. 17 and
18) are relied upon by him.
9. Shri Anup Gilda, learned counsel appearing for petitioner
in Writ Petition No. 4875/2004, addressed the court only on law
points. He has relied upon judgments in case of Vaishali Liladhar
Mahale .vrs. The State of Maharashtra and others (supra)
(paragraph nos. 4,5, and 7) and Pritesh Subhash Thakur .vrs. State
of Maharashtra and others (supra) (paragraph nos.11 and 12). To
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press into the service relevance of old documents and Section 90 of
the Evidence Act, he has relied upon judgment in case of Madhuri
Dhananjay Nalawade .Vrs. State of Maharashtra and others (supra)
(paragraph no.15).
10. On merits he points out that the impugned order
unnecessarily tries to distinguish between Thakur Scheduled Tribe
and Thakur Scheduled Caste. According to him vigilance report is
in favour of petitioner only, finding of affinity is incorrect. In any
case it is insufficient to overlook the old genuine documents.
11. Ms. Rane, learned counsel appearing for petitioners adopts
the above arguments and submits that there are several decisions of
this Court in which because of validity in the family, applying
judgment in case of Apoorva Nichale .Vrs. Divisional Caste Scrutiny
Committee [supra], this Court has directed the Scrutiny Committee
to issue validity to petitioners. She submits that petitioners in Writ
Petition Nos. 619/2005, 620/2005 and 6026/2005 have brought on
record preconstitutional documents which are all found to be
genuine. All these documents record caste as Thakur. Relative of
petitioner in Writ Petition No.620/2005 has been given validity and
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she submits that suitable/appropriate application seeking leave to
produce it on record is being filed today.
12. Shri R.M. Ahirrao, learned Counsel supports above
arguments and states that in Writ Petition No. 3024/2004, the
petitioner had expired and Writ Petition is being prosecuted by legal
heirs for continuing caste benefits.
13. Shri Dhatrak, learned Counsel for petitioners in Writ
Petition No. 5718/2004, Shri Palshikar, learned counsel for
petitioner in Writ Petition No.2352/2002, Shri Jagdale, learned
Counsel for petitioner in Writ Petition No. 872/2002 adopt above
arguments.
14. Shri Sirpurkar, learned counsel for petitioner in Writ
Petition No. 5817/2004, additionally submits that cousins of said
petitioner have validity which has been erroneously rejected by the
Scrutiny Committee.
15. Shri Mishra, learned Counsel for Petitioner in Writ
Petition No. 3605/2004, adds that though all old documents are
consistent with the tribe claim, because of only one stray entry of
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Bhat, the petitioners' caste claim has been invalidated. He submits
that said entry is of one Gulab taken on record on 24.05.2005. He
points out that for very same period, there is another document of
Gulab, which mentions caste as Thakur, and not as Bhat.
Explanation furnished by the petitioner has been erroneously
rejected. He further states that petitioners have not filed validities
with affidavit to demonstrate relationship and the scrutiny
committee has ignored the same by observing that there is no
affidavit. He points out that on 24.01.2011, in Writ Petition
No.9026/2010, validity is given to daughter of petitioner. In Writ
Petition No. 4186/2007, he points submits that there is validity in
favour of one Rupesh. According to him, therefore, order of the
Scrutiny Committee shows total nonapplication of mind.
16. With leave of the Court, Shri Parsodkar, learned counsel
attempted to distinguish the judgment delivered by the Aurangabad
Bench on 04.05.2018 in case of Monika Thakur [supra]. He claims
that said judgment ignores binding precedents and also overlooks
the law laid down by the Hon'ble Supreme Court of India on judicial
discipline in case of (2008) (10) SCC 1 (Official Liquidator .vs.
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Dayanand and others) .
17. Shri Sohoni, learned counsel for petitioner in Writ
Petition No. 4099/2005, submits that in said matter the farce
vigilance enquiry has been conducted by examining only wife and
mother of petitioner.
18. Shri Saboo, learned counsel for petitioner in Writ Petition
No. 1496/20047, states that on 24.10.2013, validity is given to a
relative. He adds that affidavit in support of the family tree has been
filed for the first time in this petition and fairly submits that it was
not before the Scrutiny Committee.
19. Shri Dangre, learned counsel for petitioner in Writ
Petition No. 726/2004, submits that because of Bhat entry dated
21.10.1935, the tribe claim has been invalidated. That document
does not contain full name of grand father and because of this
incomplete and inadmissible entry, other genuine documents have
been overlooked. He further states that the scrutiny committee has
not restored to affinity test also. His contention that there is no
affinity test used while examining the caste claim of Pushpalata in
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Writ Petition No.726/2004, runs contrary to paragraph no.8 of the
impugned order of the Scrutiny Committee. Moreover, the
Committee has in paragraph nos. 4,6 and 7 looked into the entries of
relatives wherein old documents caste is recorded as 'Bhat'.
Petitioner denied her relationship with one Narayan Bhat. However,
the Committee could trace out his relation with Ajab Narayan
Bhuyar, by procuring a document of his date of birth and also a
reported date of birth of male child Narayan Bhat. The said
contention therefore, is, misconceived.
20. Shri Kalmegh, learned counsel adopts the arguments
advanced by various counsel stated above. He states that Civil
Application (W) No. 2813/2017 has been filed in Writ Petition No.
1553/2004, seeking leave to produce new documents. He further
points out that in Writ Petition No. 2516/2004, there is a validity
issued on 30.05.1998 to a relative. He further invites attention to
orders of the Scrutiny Committee to show that it has overlooked
various documents. He is relying upon judgment reported at 2014
[1] All MR 78 ( Vaishali Chatarsing Ingale (Thakur) Vs.
Committee for Scrutiny and Verification of Tribe Claims and
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ors . ) , to point out relevance of such old validity.
21. Respective learned A.G.Ps., have submitted that in all
these matters there is no contention and ground that upper caste
Thakurs do not exist. Various judgments and Texts shows that
Thakur caste and Thakur tribe are different. Thakur Tribe has
become Thakur Scheduled Tribe after 1950, but, difference between
Thakur caste and Thakur Tribe is in existence since beginning.
Reference to this difference by the scrutiny committee and therefore,
its interpretation or mention of caste as Thakur in old documents
therefore, cannot be confused with later concept of “Scheduled
Tribe”. The language employed by the committee members may not
be strictly legal and precise, however, it needs to be understood
liberally in the context of this age old well recognized difference.
When Thakur Scheduled Tribe community is very less in number,
swell therein is due to upper caste people attempting to take benefit
of reservation. Hence, mere relevance of word Thakur, recording
Thakur as caste in old documents is not decisive and affinity test is
the only way out to preserve and protect the interest of real
Scheduled Tribe Thakur community.
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22. Various judgments pointed out by the petitioners
including that of Full Bench judgment in case of Shilpa Vishnu
Thakur .vrs. State of Maharashtra and others (supra), and
Murlidhar Ramkrishna Gathe .vrs. State of Maharashtra and others
(supra), is relied upon for this purpose.
23. It is pointed out that in Writ Petition No.804/2002 and
some other matters petitioners have filed new documents which did
not form part of exercise of verification. These new documents
therefore, have never been subjected to vigilance enquiry. The
validities could have been pointed out to the scrutiny committee
earlier or then at least a correct family tree tracing relationship with
the holders thereof could have been filed before the scrutiny
committee. Submission is, selectively relationship is accepted even
after the scrutiny committee has validated any caste claim. Persons
like petitioners avoided to associate themselves with relatives when
validity is declined by the Scrutiny Committee. .
24. Without prejudice, it is submitted that if this court is
inclined to permit such documents/validity on record, the vigilance
enquiry into such documents cannot be avoided, and therefore,
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remand is the only solution.
25. Before proceeding further, it will be worthwhile to
mention that the petitioners bank upon judgment of Division Bench
of this Court delivered at Bombay in Writ Petition No. 7/2014
Motilal Namdeo Pawar .Vrs. Scheduled Tribe Scrutiny
Committee. They have relied upon several other judgments which
takes similar view. Respondents rely upon Division Bench judgment
delivered at Aurangabad in Writ Petition No. 10123/2010 and others
dated 04.05.2018 ( Monika d/o Satish Thakur, Chetan s/o
Satishchandra Thakur .vrs. State of Maharashtra and others).
This judgment is reported at 2018 Law Suit (Bombay) 816. They
point out that after considering the judgments relied upon by
petitioners and other judgments which take note of existence of
Upper Caste Thakur, judgment in case of Monika (supra), must be
accepted as laying down the law which must be held to be binding.
Their effort is to demonstrate that judgment in case of Motilal Pawar
(supra), is on facts, does not lay down law, and therefore, is not a
precedent at all.
26. In the light of these arguments, petitioners have also
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relied upon the judgment of Hon'ble Supreme Court reported at
(2008) (10) SCC 1 (Official Liquidator .vs. Dayanand and
others) , to point out how judicial discipline mandates adherence. to
Division Bench judgment in case of Motilal and others (supra). We
will refer to all these judgments little later in the course of this
judgment.
27. We find it appropriate to begin with consideration of the
judgments which take one or the other view on the controversy.
28. Judgment reported at 2017 (1) Mh.L.J. 814 (Madhuri
Dhananjay Nalawade .Vrs. State of Maharashtra and others) , is
relied upon to urge that when documents produced in support of
Caste claim which are more than 30 years old, presumption under
Section 90 of the Evidence Act, 1872 is attracted. In the said
judgment, reliance was placed on a Caste validity certificate issued to
one Rajendra. This certificate was discarded by the Scrutiny
Committee observing that it was granted as per legal position then
prevailing. In addition, petitioner relied upon old documents dated
15.07.1910, 15.03.1913, 15.06.1914. It is in this background that in
paragraph no.13, the Division Bench has recorded that the Scrutiny
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Committee fell in error in discarding the validity. Change in law is
held to be an irrelevant factor and in the light of the judgment in
case of Apoorva Nichale .Vrs. Divisional Caste Scrutiny
Committee (2010 (10) Mh.L.J. 401) , the Committee found that
said validity could have been used by the petitioner. It is in this
background that the Division Bench makes reference to Section 90 of
the Evidence Act, in paragraph no.15 of its judgment.
29. Division Bench at Nagpur in case of Vijaykumar
Narayan rao Kale .vrs. State of Maharashtra (2013 (5) Mh.L.J.
930) , has considered the provisions of the Maharashtra Scheduled
Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance and Verification of) Caste
Certificates Act, 2000 (Maharashtra Act No. 23 of 2001) (hereinafter
referred to as “ the Act No.23 of 2001 ” for short), while examining a
challenge to old order Additional Commissioner dated 07.08.1993,
dismissing the appeal against the invalidation by the Committee as
per procedure then in force. This Court has found that in said
Enactment, the caste validity certificates issued before its coming
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into force, have not been recognized. One of us (B.P.Dharmadhikari,
J), is party to said judgment.
30. In 2018 SCC Online Bom. 1035 (Pritesh Subhash
Thakur .vrs. State of Maharashtra and others) , Division Bench of
this Court at Bombay has in paragraph no.12 found that it was not
open to the Scrutiny Committee to reach a conclusion that Pritesh
belongs to Caste Thakur, and not Thakur, Scheduled Tribe.
Committee is duty bound to read the entry in Constitution,
Scheduled Tribe Order, 1950 at Sr.No.44 as it is, and it was not open
to the Committee to observe that Thakur Caste existed. It is in this
backdrop that recourse to affinity test by the Committee is found
erroneous. To support these findings, judgment of Hon'ble Supreme
Court in case of Anand .vrs. Committee (supra), has been relied
upon. Thus, the Division Bench here does not rule out or conclude
that Upper Caste Thakur are not in existence.
31. In 2017 SCC Online Bombay 8784 (Vaishali Liladhar
Mahale .vrs. The State of Maharashtra and others.) in paragraph
no.4, again a similar view has been taken. In paragraph no.7,
finding of the Scrutiny Committee that petitioner could not produce
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a document mentioning Caste as Thakur Scheduled Tribe, is found
erroneous, with conclusion that before the Scrutiny Tribe Order,
1950 in preconstitution documents word “Scheduled Tribe” could
not have figured. In paragraph no.5 there is reference to area
restrictions. Again this judgment does not hold that Thakur Upper
Caste is not in existence.
32. In Writ Petition No. 9356/2014, decided at Bombay on
23.04.2015 in paragraph no.8, the similar approach of the Scrutiny
Committee is criticized. Facts there show that the Division Bench
finds that each matter needed individual consideration, but, in cases
where relatives have validity, and validity is granted because of
orders of the High Court or the Hon'ble Supreme Court, the Scrutiny
Committee has limited scope to undertake verification. This
judgment relied upon by the petitioners, therefore, does not support
the contention that mention of Caste as Thakur in a preconstitution
document is decisive and recourse to affinity test is prohibited. On
the contrary, observations in paragraph no.8 in said judgment
indirectly militate with this contention. It is to be noted that Special
Leave Petition (Civil) No. 26523/2015, filed against this judgment
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has been dismissed by the Hon'ble Supreme Court on 21.09.2015.
33. Petitioners have also relied upon the judgment delivered
on 12.12.2013 at Bombay in Writ Petition No. 6744/2011, in case of
Sangita Sahebrao Bhalerao .vrs. State of Maharashtra. Perusal of
this judgment, particularly paragraph no.14 shows that old
documents reveal that Caste of ancestors of Sangita was recorded as
Thakur in school records. The research officer had opined that traits,
characteristics, disclosed by her were not of Thakur Scheduled Tribe.
It appears that question whether she belong to Upper Caste Thakur
or not, did not fall for consideration and has not been looked into by
this Division Bench.
34. In judgment in Writ Petition No. 4504/2015, delivered at
Bombay on 14.07.2017, the contention of petitioner Vaishali that
there was no material on record even remotely suggested that she
belongs to Upper strata or a different Caste, has been accepted and it
is concluded that the affinity test cannot be said to be decisive.
Thus, view taken is in the facts and circumstances of the matter.
35. In Writ Petition No. 1553/2017 (Jairam Vishram
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Gangwane .vrs. State of Maharashtra and others) decided at Bombay
on 10.02.2017, it appears that relatives on paternal side of Jairam
already had validity certificates and the Scrutiny Committee had no
material with it to dispute the same.
36. In Writ Petition No.15/2009 (Padmakar Babasaheb vishve
.vrs. State of Maharashtra ) decided at Aurangabad on 16.03.2017, it
appears that real brother of petitioner had a validity dated
31.05.2004. There were also validity certificates ie. validities issued
on 30.03.2015 and 06.04.2015 to other relatives. It is in this
backdrop that the order of the Committee invalidating the Caste
claim of petitioner Padmakar dated 03.10.2008 was quashed and set
aside.
37. In 2003 (3) Mh.L.J. 513 (Mana Adim Jamat Mandal
.vrs. State of Maharashtra and others) , Division Bench of this
Court has looked into the judgment of Hon'ble Supreme Court in
case of Palghat Jilla Thandan Samudaya Samrakshna Samiti .vrs.
State of Kerala ((1994) 1 SCC 359, in paragraph no.23, it is found
that no action to modify the plain effect of Schedule Caste order,
except as contemplated by Article 341, was valid. The Division
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Bench further observes that it was not open to the Committee or the
Court to make any addition or subtraction in the Presidential Order.
The Division Bench in paragraph no.24 of the judgment thereafter
looks into entry no.18 of the Scheduled Tribe Order, 1950 and
concludes that as Mana community finds inclusion therein, it was not
possible for the Committee or the State Government or the Court to
deny benefit to members belonging to Mana community. Action of
State Government in declaring Mana community as Special
Backward Class was therefore, quashed and set aside. The Division
Bench also finds that if there be a separate community by name
Mana in Vidarbha Region, which does not possess any affinity with
Gond Tribe, that community would also fall in entry no.18. The
inquiry to determine whether a section of Manas' was excluded from
the benefit of Scheduled Tribe Order was therefore, held not open.
In paragraph no.25, reference is made to earlier judgments in case of
Pandurang Chavan .vrs. State of Maharashtra, which quashed
government action declaring their community as Other Backward
Class. While mentioning the judgment of Hon'ble Supreme Court in
case of Pankaj Kumar Shah .vrs. Sub Divisional Officer, Islampur
((1998) 8 SCC 264) , the limited inquiry or evidence admissible is
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taken note of. It is found that in paragraph no.6 of its judgment, the
Hon'ble Supreme Court found that evidence was admissible only to
find out whether particular Caste claimed by to be Scheduled Caste
or Tribe was included in the Presidential Notification or not. The
Hon'ble Supreme Court held that Court is devoid of power to include
or order to exclude from or substitute or declare synonyms to be
Scheduled Caste or Scheduled Tribe. The action of State
Government in declaring Thakur to be other backward class was
therefore, found unsustainable in Pandurang Chavan (supra). Again
this Division Bench was not required to consider whether Thakur
Caste existed independent of Thakur Tribe and it has different status
in the society.
38. Division Bench of this Court in 2004 [2] Mh.L.J. 578
(Narendra Dhudku Thakur .vrs. Scheduled Tribe Certificate
Scrutiny Committee, Pune and others.) , has looked into the
finding of the Scrutiny Committee that the petitioner Narendra
belonged to Thakur Caste and was a non tribal. In paragraph no.4,
the Division Bench reproduces consideration in Pandurang Chavans
case (supra), and thereafter in paragraph no.5, mentions judgment
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of Hon'ble Supreme Court in case of Palghat Jilla Thandan
Samudaya (supra). Division Bench has concluded that no action to
modify the Scheduled Tribe Order 1950 was possible and the
Committee could not have distinguished between Thakur Caste and
Thakur Tribe. Thus, this appears to be the only judgment which
hold that no distinction can be made between Thakur Caste and
Thakur Tribe. However, again attention of this Division Bench was
not invited to the difference between a Caste and a Tribe.
39. In Writ Petition No. 1661/2009 ( Praful Anirudha
Ingle .vrs. State of Maharashtra and others ), decided at Nagpur on
10.10.2013, the Division Bench has found that there was validity in
the family and it was not disputed by the Scrutiny Committee. In the
backdrop of this validity, judgment of Hon'ble Supreme Court in
Caste of Anand .vrs. Committee for Scrutiny (supra), and Division
Bench judgment in case of Apporva Vinay Nichale (supra), have been
applied. One of us (Z.A. Haq, J), is party to this judgment. Again
this judgment does not consider the existence of Thakur Upper
Caste.
40. On same date (10.10.2013), same Bench has delivered
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judgment in Writ Petition No. 2750/2009 ( Sou Sheela Sudhakar
Gathe .vrs. The Scheduled Tribe Caste Certificate Scrutiny
Committee and others ). There again a validity was available.
41. Very same Bench has on 27.09.2013, decided Writ
Petition No. 4869/2012 ( Gopal Mahadeorao Bayaskar .vrs. The
Scheduled Tribe Caste Certificate Scrutiny Committee and
others ). In paragraph no.7, the assertions of Scrutiny Committee
that entry Thakur is found in Caste certificates of others who are not
Scheduled Tribes, has not been considered and in paragraph no.8,
judgment of Hon'ble Supreme Court in case of Anand .vrs.
Committee for Scrutiny (supra), has been relied upon. Again this
judgment does not consider existence of Thakur Upper Caste.
42. Judgment delivered at Bombay on 08.03.2013 in Writ
Petition No. 11241/2012 ( Ravindra Pralhadrao Khare .vrs. State
of Maharashtra and others ) in paragraph no.4, the Division Bench
finds that in 194748 entry as “Thakur Tribe” could not have been
made. Thereafter there is reference to judgment of Hon'ble Supreme
Court in case of Anand .vrs. Committee for Scrutiny (supra). This
judgment therefore, does not deal with Thakur Upper Caste.
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43. Division Bench at Aurangabad in judgment reported at
2016 [1] Mh.L.J. 94 (Chandrashekhar Gaikwad .vrs. State of
Maharashtra and others) , in paragraph no.12 records that pre
constitution documents mentioning Caste deserve more credence
and affinity test could not have been used as a decisive test.
44. In 2016 [5] Mh.L.J. 907 (Sonak Bakade .vrs. Joint
Commissioner and Vice Chairman and others), failure in affinity
test is held not decisive. The matter was in relation to Halbi
Scheduled Tribe and question of present nature did not arise for
consideration there.
45. Judgment of Hon'ble Supreme Court in Civil Appeal
No.12336/2011 dated 08.03.2017 (Jaywant Dilip Pawar .vrs. State
of Maharashtra and others), shows that the Scrutiny Committee
could not have rejected Caste claim of Jaywant on the ground that
he or his relatives were not residing in the area mentioned in the
Presidential Order. The Hon'ble Supreme Court looks into impact of
removal of area restrictions in 1976 and finds the High Court in
error in applying area restrictions even thereafter.
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46. Recent judgment of Division Bench of this Court at
Nagpur in case of Narendra Balaji Ghodmare .vrs. Scheduled
Tribe Certificate Scrutiny Committee, Gadchiroli and others
(2018 (2) Mh.L.J. 766) , shows importance of Preindependence
documents. There all documents reveal that the petitioner and his
forefathers belonged to Mana Scheduled Tribe, as observed by the
Division Bench in paragraph no.21 of the said judgment. The
finding of the Committee that the documents revealed Caste Mana
and not Mana Scheduled Tribe is not accepted. In paragraph no.19,
the Division Bench observes that prior to 1950, the concept of
Scheduled Tribe was not in existence, and therefore, the Tribe or
Caste were recorded under heading “Caste”. Division Bench has also
observed that “while entering name, the distinction between Caste
and Tribe is ignored.” This Division Bench therefore, takes note of
fact that Caste and Tribe are different.
47. We at this stage may point out that framers of
Constitution have in Article 341 and 342 of the Constitution of India
have also taken note of this distinction between Caste and a Tribe.
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Certain Caste have been recognized as Scheduled Caste, while
certain Tribes have been recognized as Scheduled Tribe. This
treatment shows that difference between a Caste and a Tribe already
existing, has been taken note of by the Constitution. The distinction
has not been made for the first time while issuing the Constitution,
Scheduled Caste or Constitution Scheduled Tribe Order, 1950.
48. Division Bench of this Court at Bombay in Writ Petition
No. 9026/2010 ( Ku. Sampada P. Wankhede .vrs. State of
Maharashtra and others ) on 24.01.2011 noticed this difference in
caste Thakur and scheduled tribe Thakur in paragraph no.3. Said
Division Bench noted finding of the Scrutiny Committee that the
petitioner belonged to Thakur Scheduled Tribe. High Court has held
that as petitioner belonged to Thakur Scheduled Tribe there was no
justification for holding the affinity test. This Division Bench thus
finds that had Committee found that the petitioner belonged to
Thakur Caste or had any reason to doubt it, then only the Committee
could have inquired into affinity to find out whether she belonged
to Thakur Scheduled Tribe. This judgment, therefore, indirectly
recognizes existence of Thakur Caste, which is distinct from or
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independent of Thakur Scheduled Tribe. This also does not rule out
use of affinity test in appropriate cases.
49. Petitioners have relied upon judgment of Hon'ble
Supreme Court dated 23.08.2011 in Civil Appeal No. 7230/2011
( Amruta Vijay More .vrs. State of Maharashtra and others ). The
Hon'ble Supreme Court has allowed appeal of Amruta and her Caste
claim as belonging to Thakur Scheduled Tribe has been accepted. It
appears that because of validities in the family, use of affinity test
to discard those validities in not countenanced by the Hon'ble
Supreme Court.
50. In 2016 [4] All M.R. 404 (Dattatraya Shriram Ingle
.vrs. The Committee for Scrutiny and Verification of Tribal
Claims and another), Division Bench of this Court at Nagpur found
that when Caste with name Thakur is available, holding of affinity
test to determine whether the candidate belongs to Thakur
Scheduled Tribe is warranted and mere Scrutiny of all documents
will never be sufficient to determine the real status.
51. Full Bench judgment of this High Court reported at 2009
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[3] Mh.L.J. 995 (Shilpa Vishnu Thakur .vrs. State of Maharashtra
and others) , looked into a situation which arises when a Caste and a
Tribe have same name. Division Bench judgment in case of
Maharahtra Adivasi Thakur Jamat Seva Mandal and others .vrs. State
of Maharashtra and others (1986 Mh.L.J. 1021), has been looked
into along with other judgments. We are referring to this judgment
at some length below. Division Bench judgment in case of Murlidhar
Ramkrishna Gathe .vrs. State of Maharahtra and others (2007 (3)
Mh.L.J. 308) is also looked into. Division Bench in Murlidhar Gathe
[supra] observed that when word or surname 'Thakur” is shared by
both forward and backward communities, burden of proving that he
belongs to Scheduled Tribe heavily lies on a person claiming it.
Examination of traits, characteristics, is therefore, essential. In
paragraph no.36, a contrary view taken by the other Division Bench
in case of Raviprakash Babusingh Parmar .vrs. State of Maharashtra
and others (2004 [1] Mh.L.J. 177), is also taken note of. Full Bench
finds that the Hon'ble Supreme Court has overruled it in appeal filed
by State of Maharashtra by a decision reported at (2007) 1 SCC 80.
52. Judgment in case of Pandurang Raghunath Chavan
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(supra), is also considered and this Full Bench points out that it does
not deal with standards to be applied in determining whether an
individual has established his status as Scheduled Tribe. Full Bench
also holds that Division Bench does not preclude an inquiry into
question, as to whether a person who stakes a claim to belong to a
Scheduled Tribe, does in fact belong to that Tribe or not.
53. This Full Bench also considers the judgment of Division
Bench in case of Chandrakant Bajirao Shinde .vrs. State of
Maharashtra and others (2003 [2] Mh.L.J. 471) . That Division
Bench had held that once it was found that the petitioner belongs to
Caste Thakur, it was not open for the Scrutiny Committee to find out
whether he belongs to Thakur Scheduled Tribe. Full Bench points
out that this judgment in case of Chandrakant [supra], is prior to
judgment of the Hon'ble Supreme Court in case of Raviprakash
Parmar [supra] and Division Bench judgment therefore, cannot be
understood as laying down a principle that the Scrutiny Committee is
debarred from considering whether a person who applies for Caste
certificate is in fact a member of Scheduled Tribe or not. It has
been found that Chandrakant Shinde is impliedly overruled because
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of judgment of Hon'ble Supreme Court in case of Raviprakash
Parmar. Other judgments i.e. Narendra Thakur .vrs. Scheduled
Tribe Certificate Committee (2004 [2] Mh.L.J. 578) , and Arun
Babarao Ingle .vrs. State of Maharashtra (2005 [1] Mh.L.J.
1081) , were overruled by Raviprakash Parmar (supra). Even
Division Bench judgment in case of Pravin Pandurang Ingle decided
on 24.11.2004 is found not laying down a correct law. Even
judgment in case of Amol Nagorao Wakkar .vrs. State of
Maharashtra (2005 [1] Mh.L.J. 798), delivered by the High Court
holding that the Scrutiny Committee could not hold inquiry on the
basis of socio cultural traits and ethnic linkage to find out whether
petitioner belong to Thakur Scheduled Tribe, is found overruled.
54. Full Bench of this Court has recorded its conclusion in
paragraph no.39 of its judgment. It is held that affinity test is an
integral part of determination of the correctness of the claim. It has
found that merely because documents produced by a person reflect
his surname as being synonym with the name of a designated Tribe,
it is not sufficient to establish that he belong to Scheduled Tribe.
55. In Maharashtra Adivasi Thakur Jamat Seva Mandal and
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others Vs. State of Maharashtra through the Secretary to the Tribal
Development Department, Bombay32 and others, (supra), t he
Division Bench of this Court observes in paragraph No. 9, as under :–
“9. From the material placed on record it
appears that there is also a caste known by name,
'Thakure' which is amalgamation of certain sub
caste . The details of this sub caste are given in the
accompaniment to the Government Resolution dated
29th April, 1985, though the list is not exhaustive
and is merely illustrative. From Entry No.44 in the II
Schedule the Scheduled Caste s and Scheduled Tribes
Order (Amendment) Act 1976, the Tribes known as
Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur
and Ma Thakar are notified as Scheduled Tribes. In
the list notified by the Maharashtra Government for
other Backward Class. Therefore, from the material
placed on record it appears that there is a distinct
caste carrying same nomenclature. Hence it is
necessary to find out in each case as to whether the
claimant belongs to Scheduled Tribe or the Caste
carrying the same name. By indirect method or
obliquely a caste which is not included in the
Schedule relating to Scheduled Tribe, cannot be
equated with or conferred the status of Scheduled
Tribes. It is experienced that benefits are snatched
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away by most vocal classes, and thus keeping the
weaker among the weak always weak. This not only
robs them of their share in benefits but creates
further inequalities amongst the unequals. Therefore
an enquiry in each case is a must and this is
precisely what is contemplated by the various
Government Resolutions. It is true, that only because
in the various certificates produced by the claimants
he is described as 'HinduThakur' it does not mean
that he necessarily belongs to Thakur Caste and not
to the Thakur Scheduled Tribe. His or her place of
residence is also not a decisive factor. Though it was
the case of the State Government in Kum. Sunita's
case that the tribals cannot be Hindus, the said
stand is rightly given up before us.”
56. We find that this Full Bench judgment shows that a Caste by
name Thakur exits independent of Thakur Scheduled Tribe and after
a dispute of present nature arises, legitimately affinity test can be
resorted to. Petitioners state that this Full Bench judgment is stayed
by the Hon'ble Apex Court. They claim that it therefore has no
binding effect. However, they have not cited any precedent in
support. We find from Shree Chamundi Mopeds Ltd. v. Church of
South India Trust Association, Madras , a stay by the Supreme Court
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does not mean that such a law laid down in said judgment ceases to
apply. This is also seen in (2007) 3 CHN 178 Piyush Kanti
Chowdhry vs. State Alka Gupta vs Medical Council Of India And
Anr on 5 May, 2014. Similarly in W.P.(C) 889/2013 and CM
APPL. 1689/2013 on 5/5/2014 , the learned Single Judge of the
Delhi High Court has reached same conclusion. To comprehend the
impact of interim order staying the operation of the impugned
order, distinction between quashing of an order and stay of its
operation needs to be kept in mind. Quashing results in the
restoration of the position on the date of the passing of said order.
The stay of its operation only does not lead to such a result. It only
means that said order can not operate from the date of grant of the
stay. It does not mean that the impugned order is wiped out.
Kolkata and Delhi High Courts therefore, find that the effect of the
order of stay in a pending appeal before the Hon'ble Apex Court,
does not amount to 'any declaration of law' but is only binding upon
the parties to the said proceedings and at the same time, such
interim order does not destroy the binding effect of the judgment of
the High Court as a precedent because while granting the interim
order, the Hon'ble Apex Court had no occasion to lay down any
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proposition of law inconsistent with the one declared by the High
Court which is impugned. When the Constitution of India itself treats
Castes and Tribes separately, We need not delve more into this
submission of the Petitioners.
57. In (1994) 6 SCC 241 (Kumari Madhuri Patil and
another .vrs. Addl. Commissioner, Tribal Development and
others) , the Hon'ble Supreme Court has in paragraph no. 13[5] and
13[6] laid down a principle which shows relevance of affinity test in
case of Scheduled Tribes. In Anand .vrs. Committee for Scrutiny
(supra), the Hon'ble Supreme Court does not rule out or prohibit use
of affinity test. Consideration by the Hon'ble Supreme Court reveals
need of adopting a balanced approach. In cases of present nature,
where a Caste and a Tribe has same name, the mere mention of a
Caste in old documents cannot be understood as indicating a
reference to a Tribe. Such reference may be to Upper Caste Thakur
or even to a Scheduled Tribe Thakur. In this situation, when a
doubt arises, the Scrutiny Committee is not prohibited from taking
recourse to affinity test. Observations in paragraph no.18 of this
judgment by the Hon'ble Supreme Court cannot be understood to
prevent the Scrutiny Committee from applying the affinity test.
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58. Judgment in Motilal Namdeo Pawar .vrs. Scheduled Tribe
Scrutiny Committee (supra) turns mostly on facts of the matter and
errors by the Scrutiny Committee which are found sufficient to
award validity. In other words, it does not lay down a law applicable
in controversies like present one. Though the School records of
Motilal mentioned the caste as “Hindu Thakur” or Thakur, he was
not fitting in entry 44 of ST Order and could not establish affinity or
linkage with it. Hence on 4.3.1989, the Scrutiny Committee
canceled his caste certificate. The Division Bench mostly points out
faulty consideration of facts by the Committee. The stereotype
format of order is seen as routine thereby indicating mechanical
application of mind. That Committee formulated usual three points.
This Court looks into its findings on documents and notes that the
Committee by relying on para 8 in judgment of the High Court in
WP 1953 of 2007 ( Dipika Subhash More vs. State ) concludes that
Thakurs exist in uppercastes like Kshatriya,Rajput,Sindhi,Maratha,
Brahmins etc. Said Scrutiny Committee therefore found recourse to
affinity crucial. Committee also referred to WP 2791 of 2011 where
the Aurangabad Bench observed similarly. Validity dated 28.8.2000
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to relative Sunildatta Pawar was discarded by it as relationship was
not proved. Family Tree filed earlier did not mention said validity
holder as relation and validity holder did not come forward to vouch
for relationship. Motilal himself filed an affidavit of relationship later
on. Sunildatta's validity was also found by Committee to be based
on law laid down by the High Court following the Hon'ble Apex
Court judgment in Palghat Jilla Thandan Samudhaya (supra).
Committee noted that the Hon'ble Apex Court in Sunil Muralidhar
Thakur found the view of High Court incorrect. Committee also
relied upon the cases in which High Court upheld its exercise of
invalidation applying the affinity. While looking into ethnic linkage,
the Committee found that Motilal was not resident of the area
forming ordinary dwelling place of Thakur schedule tribe. With
reference to Area restriction removal in 1976, that Scrutiny
Committee held proof of migration out of “restricted area” essential.
Further consideration by the Division Bench shows how the
Committee mechanically applied affinity test also again falling back
on area restriction. The Division Bench in paragraph No. 7 finds the
approach of the Committee subjective. The reasoning and line
adopted is identical as in earlier as seen by the High Court in earlier
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matters. Expectation of the Committee to have a “thakur schedule
tribe” instead of “thakur” entry is also found unsustainable. This
Court explains that entry 44 is not “thakur, schedule tribe”.
Expectation of Committee to have thakur schedule tribe entry in pre
constitutional documents is found unacceptable. The Division Bench
concludes that said Scrutiny committee rejected preconstitutional
documents on illusory grounds.
59. This Court in Motilal's case, in the light of these findings
relies upon the judgment of the Hon'ble Apex Court in Anand vs,
Committee of Scrutiny (supra) to gather its scope, content and notes
that affinity is not a litmus test. The observations in paragraph 11 of
its judgment by the Division Bench show that in facts before it, the
affinity test could not have been used as sole criterion to invalidate
the claim. In subsequent subparagraphs the reason given by the
Committee to arrive at a negative finding on the affinity test is found
shocking.
In paragraph 12, the approach of the Committee in
general in such cases is found objectionable. In next paragraph,
faulty use of area restriction despite its removal in 1976 finds
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consideration in the backdrop of Full Bench Judgment in Shilpa
Vishnu Thakur vs. State of Maharashtra (supra). Residence within
such area can be used as one of the factors in favour of the claimant.
In paragraph 19, this judgment holds finding of the Committee that
petitioner Motilal could not prove relationship with validity holder
Sunildatta, incorrect. This Court therefore draws support from the
Full Bench view in Shilpa Thakur (supra) though said judgment is
stayed by the Hon'ble Apex Court. This appreciation by the Division
Bench and its comments briefly noted supra show that it is mainly
the impugned order dated 22.11.2013 of that Scrutiny Committee
and defects already criticized by the High Court found repeated
therein, that made it come down rather heavily on the mode and
manner of the functioning of the Committee. The findings and
observations are therefore in specific facts of the case of Motilal
Pawar where there existed a validity and it was ignored arbitrarily.
This Division Bench takes note of Full Bench judgment in case of
Shipa Thakur (supra), availability of Thakur in uppercastes but does
not hold that such uppercaste Thakur does not exist. The Division
Bench also does not rule out in appropriate cases, the use of affinity
test. It also does not criticize use thereof. We find that the Division
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Bench at Aurangabad has on 4.5.2018 while deciding the case of
Monika (supra) correctly appreciated and distinguished it.
60. Attempt of the petitioners before us to work out
inconsistency between Motilal (supra) and Monica (supra) is
misconceived and must fail. Use of Supreme Court judgment in case
of Dayaram (supra) to point out judicial discipline will not be
relevant here. In Shilpa Thakur(supra) the Full Bench in paragraph
38 also points out that an instructive article on the subject, entitled
"PseudoTribalization: An Anthropological Perspective", written by
Dr. Robin D. Tribhuwan, an Anthropologist associated with the
Tribal Research and Training Institute at Pune. The article by Dr.
Tribhuwan refers to similarities of nomenclatures between tribal and
nontribalcommunities. This is evident from the following table
looked into by the Full Bench:
Tribal communities NonTribal communities
1. Mahadeo Koli, Tokre Koli, 1. Koli (including Son Koli,
Malhar Koli Suryawanshi Koli, Vaiti Koli
etc.);
2. Dhanwar 2. Dhangar
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3. Thakur/Thakar 3. Thakur (including Bhat,
kaThakur/ KaThakar Brahmabhat, Thakur,
MaThakur/Ma Thakar Kshatriya Thakur, Rajput
Thakur, Sindhi Thakur,
Maratha Thakur, Pardeshi
Thakur);
4. Gond Gowari 5. Gowari
5. Mannerwarlu 6. Munnurwar/Mannerwar/
Mannawar
6. Halba/Halbi 7. Koshti/Halba Koshti
This Full Bench also mentions monographs of Prof.
Mutatkar and Dr. Tribhuwan emphasizing that there has been a
rapid rise in the growth rate of the Scheduled Tribes between 1971
and 2001 which is not reflective of a natural biological growth but
an attempt by communities which do not genuinely have an affinity
to Scheduled Tribes towards pseudotribalization. These
contributions in the written work of experts on the subject only go to
emphasize the dangers of the benefits granted to the Scheduled
Tribes being frittered away at their expense if unverified claims of
impostors are not nipped in the bud.
61. The observation of Scrutiny Committees before us in the
impugned orders that reference to Thakur caste in preconstitutional
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documents can not be construed as reference to Thakur schedule
tribe, is therefore neither erroneous nor perverse here. None of the
petitioners have urged that there are no such nonTribal Thakurs or
pseudo thakurs. We find that whenever the Scrutiny Committees
associate the word schedule tribe with preconstitution documents, it
is only highlighting the difference between the concept of “Caste”
and “Tribe”. Historically, Tribes were restricted to a specific area and
hence evidence of ancestors residing in that area may corroborate
the claim for grant of validity. However absence of such evidence is
not decisive at all.
62. Full Bench of this Court in 2008 (8) LJSOFT 23 = 2008
(4) Mah.L.J. 843Emkay Exports and anr. Vs. Madhusudan
Shrikrishna has explained in paragraphs 11, 25 and 12 to 16 the Law
on the point of precedent and ratio decidendi. Relevant portions
extracted therefrom read :
"(PARA 11:) Even for a precedent to be binding, it
cannot be without judicial decision or arguments
that are of no moment. To be a good precedent, it
has to be an adjudged case or decision of a court of
competent jurisdiction considered as furnishing an
example or authority for an identical or similar
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case or a similar question of law afterward
arising. It is the ratio understood in its correct
perspective that is made applicable to a subsequent
case on the strength of a binding precedent."
"(PARA 25:) As is apparent from the discussions
of the judgments, the Division Bench judgment of
this court in the case of Bombay Enamel Works
(supra) was not cited before the Bench hearing
M/s. D. Shanalal's case (supra). The judgment of
equibench on the same principle with similar
facts, if is a precedent applicable in law , goes
unnoticed in a subsequent judgment, the
subsequent judgment may not be termed as a good
law in face of the doctrine of stare decisis. While
interpreting the judgment, the court has to pin
point its attention to the ratio of the judgment.
Keeping in view the principle of stare decisis a view
which has been holding the fort need not be
disturbed only because another view would be
possible. The judgments which have held the field
for a fairly long time ought not to be disturbed
unless there is a prepondering necessity dictated by
the demands of justice to overturn them. Taking of
a different view on a mere thought that it would
have been proper that a different view was taken is
not healthy tradition to the law of precedents. The
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doctrine of stare decisis is based upon rule of
convenience, expectancy and public policy. It is to
be adhered to even if it is not imperative to do so.
Applicability of law must be determined in respect
of each case to avoid error of fact and law .
Controversies must be determined in each case by
use of discretion by the court. It may be
appropriate not to perpetuate errors but it should
also be ensured that consistency of law is not done
away with by such discretion. Reference can be
made in the cases of (i) Mishri Lal (dead) by Lrs.
v. Dhirendra Nath (dead) by Lrs. and ors., JT
1999 (2) SC 586, (ii) Milkfood Ltd. v. GMC Ice
Cream (P) Ltd., 2004 (7) SCC 288, and (iii) S.
Brahmanand and others v. K.R. Muthugopal
(dead) and others, 2005 (12) SCC 764."
"(PARA 12:) In order to apply a judgment as a
precedent, the relevant law s and earlier judgments
should be brought to the notice of the court and
they should be correctly applied. Mere observations
in a previous judgment may not be binding on a
subsequent Bench if they are not truly applicable
to the facts and controversies in a subsequent case
as per settled principle of "ratio decidendi". The
rule of precedent, thus, places an obligation upon
the Bench considering such judgments that the
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Court should discuss the facts and the law of both
the cases and then come to a conclusion whether
the principle enunciated in the previous judgment
is actually applicable on facts and law to the
subsequent case. This principle would equally
apply when the Courts have to consider which of
the two views expressed by earlier equi or other
Benches is applicable to the subsequent case. The
rule of precedent is not without exceptions. It has
its own limitations. Besides that, the law changes
with the changed circumstances and even good
law may be rendered ineffective or
unconstitutional because of passage of time, as
reflected in the principle "cessante ratione cessat
ipsa lex". Adopting this Maxim, the Supreme Court
in the case of State of Punjab and another v.
Devans Modern Breweries Ltd. and another, 2004
(11) SCC 26, stated that, with changes that are
bound to occur in an evolving society, the judiciary
must also keep abreast of these changes in order
that the law is considered to be good law . This is
extremely pertinent especially in the current era of
globalisation where the entire philosophy of
society, on the economic front, is undergoing vast
changes. Besides this well accepted precept, there
are exceptions to the rule of precedent. There are
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judiciously accepted exceptions to the rule of
precedent and they are decisions per incuriam,
subsilentio and stare decisis. These principles
explain when and where a precedent, which is
otherwise a good law , necessarily need not be
accepted in subsequent judgments if it fully
satisfies essentials of these exceptions."
"(PARA 13:) In the case of Commissioner of
Customs (Fort) vs. Toyota Kirloskar Motor (P)
Ltd., 2007 (5) SCC 371, the Supreme Court stated
the law relating to precedents and held that a
decision, as is well known, is an authority for
what it decides and not what can logically be
deduced therefrom. The ratio of a decision must be
culled out from the facts involved in a given case
and need not be an authority in generality without
reference to the reasons, discussions and facts of
the case."
"(PARA 14:) A Bench of two Judges cannot over
turn or disagree with an equiBench, if the
decision is otherwise a good precedent, their
limited option would be to refer the matter to a
larger Bench. Such opinion of reference even
normally should be supported by reasons and a
mechanical process need to be avoided, unless the
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decision of a coordinate Bench ceases to be good
law due to any subsequent event or change in law .
It is settled principle that it is not every thing said
by a Judge, while giving judgment, that constitutes
a precedent. The only thing in a Judge's decision
which bind parties is the principle upon which the
case is decided and for this reason it is important
to analyse the decision and isolate "ratio
decidendi" from it. Its three essential features are
(i) findings of material facts, direct and
inferential. An inferential finding of facts is the
inference which the Judge draws from the direct or
perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed
by the facts; and (iii) judgment based on the
combined effect of the above."
"(PARA 15:) Furthermore, ratio decidendi of a
judgment has to be found out only on reading the
entire judgment. The ratio of the judgment is what
is set out in the judgment itself. Answer to the
question necessarily would have to be read in the
context what is set out in the judgment and not in
isolation. In case of any doubt as regards any
observations, reasons or principles, the other part
of the judgment must be looked into. By reading a
line here and there from the judgment, one cannot
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find out the entire ratio decidendi of the judgment.
The reasoning could be deciphered upon reading
the judgment in its entirety and then applying
these principles to the subsequent cases. (Reference
: (i) Union of India vs. Godfrey Philips India Ltd.,
AIR 1996 SC 806, (ii) Union of India vs.
Dhanwanti Devi, 1996 (6) SCC 44, (iii) State of
Tripura vs. Tripura Bar Association, AIR 1999 SC
1494 and (iv) Islamic Academy of Education vs.
State of Karnataka, 2003 (6) SCC 697)."
63. When a judgment acts or operates as a precedent, is
considered by the Larger Bench of this Court in M/s. Emkay
Exports .vrs. Madhusudan Shrikrishna, (supra). Observations supra
in paragraph nos. 12 to 14 therein reveal that when after due
consideration of legal provisions and a binding precedent holding
the field, a reasoned view one way or the other is reached, such a
view and reasons only can operate as binding precedent.
64. In this background, when the Division Bench judgment
delivered at Aurangabad in case of Monika Thakur (supra), on
04.05.2018, is looked into, it considers the facts as also precedence
available in the field. In paragraph nos.3 and 10 there is a reference
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to Full Bench judgment in case of Shilpa Vishnu Thakur .vrs. State of
Maharashtra (supra), and thereafter in paragraph no.12 onwards
other judgments have been looked into. In paragraph no.14, there
is a categorical finding that in Maharashtra State “Thakur” is “Tribe”
as well as “Caste”. In paragraph no.18, judgment of Hon'ble
Supreme Court in Raviprakash Parmar (supra), has been looked into.
In paragraph no.21, judgment of Hon'ble Supreme Court in case of
Pournima Pawar .vrs. State of Maharashtra (AIR 2013 SC 1508) ,
has been looked into. The Scrutiny Committee in case of Pournima
has noted that there was evidence to show that she belonged to
Thakur Caste and Hon'ble Supreme Court accepted and upheld the
said finding of Scrutiny Committee. In paragraph no.22, judgment
of Hon'ble Supreme Court in case of Anand .vrs. Committee for
Scrutiny (supra), is appreciated and in paragraph no.23, it is
mentioned that when the Scrutiny Committee is not satisfied with
documentary evidence, it can conduct vigilance inquiry and also
apply affinity test. In paragraph no.24, there is a conclusion that the
petitioner has to prove that he belongs to a Tribe shown as
Scheduled Tribe, and it is permissible to consider whether he is tribal
or nontribal. In paragraph no.26, the Division Bench finds that
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Caste is inherited from father. In paragraph no.27, there is reference
to judgment of Hon'ble Supreme Court in case of Raju Ramsingh
Vasave .vrs. Mahesh Deorao Bhivapurkar ((2009) 1 Mh.L.J. 1) to
take note that principles of resjudicata do not apply. Judgment in
case of Pournima Pawar (supra), is again reiterated for this purpose.
Judgment in case of Motilal Namdeo Pawar .vrs. Scheduled Tribe
Scrutiny Committee (supra), is looked into in paragraph no.29, and
it is found that there the Tribal Validity Certificate was issued in
favour of paternal relative. The Division Bench goes through
various other judgments and in paragraph no.35, 4, validity
certificates issued in favour of siblings of petitioner are looked into.
It is found that same were without satisfaction of the Scrutiny
Committee and hence, the Committee had no option but, to consider
whether the petitioner belongs to non tribal group or not. Its
observations in paragraph no.35 are as under :
“35. Applying these principles, we find that, in
the present case, four validity certificate issued in
favour of four siblings of the petitioners are issued
without satisfaction of the Scrutiny Committee that
the claimants therein belong to Scheduled Tribe.
The Vigilance Enquiry was conducted. There is
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reference that, the claims of the petitioners were not
supported by the affinity test. In fact, the Scrutiny
Committee had rejected the claim of Yogita and
Meghana but this Court had remanded the matter
holding that the Committee had no option to
consider whether the petitioners belong to nontribal
group or not. Therefore, the Committee without
satisfaction of mind issued validity certificates. Same
is the case with regard to certificate issued in favour
of Ganesh. The order hardly runs a page, still it is
noted that the surnames origin, trait, characteristic,
traditions of the petitioner were not associated with
Thakur Scheduled Tribe. The ethnic linkage towards
Thakur Scheduled Tribe was not established. Still in
view of the decision of this Court, the Scrutiny
Committee had no alternative but to hold the
petitioner as belonging to Thakur – Scheduled Tribe.
The order in favour of Vandana is similar to the
order in favour of Ganesh. As held in Raju Vasave's
case, the High Court decisions were rendered without
hearing the benefit of the decision of the Supreme
Court. We find that, these validity certificates will
be of no assistance to the petitioners as there was no
satisfaction of the Scrutiny Committee members and
as those were conducted without following the due
procedure. There was no vigilance. The affinity test
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and home enquiry did not tally with the traits,
anthropological linkages of Scheduled Tribe Thakur.”
65. This judgment in case of Monika Thakur at Aurangabad
dated 04.05.2018 (supra), therefore, appears to be laying down a
law on the point, in terms of Full Bench judgment of this Court in
case of M/s. Emkay Traders (supra). XXXX There are various theories
of CASTE system originated in India. Those are Traditional Theory,
Racial Theory, Political Theory, Occupational Theory, Evolution
Theory. We need not comment on this facet at all but then it
demonstrates that in an attempt to discipline the civil society, the
fractions were introduced by some external agency. It therefore
prevailed where the disciplining was possible. In case of Tribes who
leaved away in Jungles and difficult areas, said caste system had no
relevance. On internet learned articles and essays are available but
for us the distinction made by the Constitution amongst the
Scheduled Castes and Scheduled Tribes is itself more than sufficient.
66. This brings us to the consideration of adherence to
discipline and binding precedents. The Hon'ble Supreme Court in
case of Official Liquidator (supra), has explained and highlighted
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need and importance thereof. Petitioners have rightly invited our
attention to observations in paragraph nos. 75, 78 and 90 of the said
judgment. The present issue cannot be decided without considering
those observations.
67. We find that though in Writ Petition No. 564/2009, Shri
R.S. Parsodkar, learned Counsel appearing for petitioner has
contended that the order was without giving petitioner necessary
opportunity, when petitioner was unwell, the impugned order shows
that on 21.02.2008, petitioner was asked to remain present before
the Scrutiny Committee on 13.03.2008. She sought adjournment
with medical certificate for a period from 12.03.2008 to 15.03.2008.
The Committee has taken note of the fact that the claim was
pending since 2005, and in Writ Petition No.188/2006, Committee
was asked to decide the same within a period of three months. The
employer also was pressing for validity and petitioner was also
permitted to appear through an Advocate. The Committee has
looked into all 22 documents produced by her, and it also records
that the information regarding traits and characteristics of Thakur,
Scheduled Tribe were given by the petitioner only on the basis of
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bookish knowledge. The Committee has while answering the issue
no.2 found that surnames given by per are found in Thakur Caste in
Buldhana District, and are not found in Thakur Scheduled Tribe.
This finding of the Committee is not shown to be perverse. The
observations also does not mean that the Committee has applied
affinity test. Even before this Court, petitioner does not point out
what or whose evidence it wanted to adduce before the Committee
to discharge obligation cast upon it under S.8 of Act no. 23 of 2001.
68. In Writ Petition Nos. 804/2002 and 2054/2002,
petitioners are brothers. The Scrutiny Committee has looked into
the documents and found that it was necessary to find out whether
petitioners belong to Thakur Caste or Thakur Scheduled Tribe. It
has then proceeded to apply affinity test. On the basis of vigilance
cell report and other material, the Committee concludes that
petitioners are not Scheduled Tribe Thakur. These findings are not
shown to be perverse at all. Date of order passed by the Scrutiny
Committee and impugned in Writ Petition No.804/2002 by Sunil
Kumar is 19.11.2001. The Scrutiny Committee has considered the
case of younger brother on 26.04.2004. Application of mind by the
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Scrutiny Committee in said matter is on same lines. In both these
Writ Petitions, Sunil Kumar and Bhalchandra have filed affidavit in
an attempt to bring on record more material. Along with that
affidavit, they have given some old documents urging that their caste
is recorded as Thakur, Scheduled Tribe. It is apparent that prior to
Constitution, Scheduled Tribes Order, 1950, concept of Scheduled
tribe itself was not in existence, mention in old documents,
particularly in document dated 17.04.1919 cannot be construed as
referring to Thakur Scheduled Tribe. The contention of petitioners
only brings on record settled practice of referring to Thakur Tribe as
Thakur schedule tribe to distinguish it from Thakur Caste. Validity
given to one Sheela d/o Sudhakar Gathe and two other relatives are
pressed into service by them , however, relationship with these ladies
is being brought on record for the first time by producing a family
tree in High Court. Reliance on Division Bench judgment of this
Court in Writ Petition No.803/2002, in case of Rajendra Madhukar
Gathe, is also misconceived. There the Division Bench was not
required to ponder over existence of Thakur caste independent of
Thakur Scheduled Tribe.
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69. Shri Anup Gilda, learned Counsel appearing for petitioner
in Writ Petition No. 4875/2004, has only argued the question of law.
Perusal of the impugned order in this petition shows that the
Scrutiny Committee has in paragraph no.17, found that only
mention of caste as Thakur, does not mean that person belongs to
Thakur Scheduled Tribe. It has applied affinity test and concluded
that petitioner does not belong to Scheduled Tribe Thakur. The case
law relied upon by learned counsel is separately considered in this
judgment.
70. Advocate Ms. Rane's argument in Writ Petition
Nos.619/2005, 620/2005 and 6023/2005 are almost on the same
lines as that of Advocate Shri Parsodkar. The Scrutiny Committee in
its order dated 24.12.2004, in Writ Petition No.619/2005 found that
the caste entries which are synonymous or have same nomenclature
as that of Tribes, needed cautious approach, and hence, recourse to
affinity. This observation in paragraph no.6 is not shown to be
erroneous.
71. In order dated 28.12.2004, impugned in Writ Petition
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No.620/2005, similar observations appear again in paragraph no.6.
In Writ Petition No. 6026/2005, impugned order is dated
25.06.2004, and again same observations are repeated in paragraph
no.6 by the Committee.
72. Shri Ahirrao, learned Counsel for petitioner in Writ
Petition No. 3024/2004 and other matters adopted the same line of
arguments. Perusal of the impugned order dated 26.07.2002 in Writ
Petition No. 3024/2004, reveals a consideration of documents in the
name of Digamber Manohar Dahake i.e. petitioner himself, in which
in junior college on 09.07.1990, caste has been recorded as 'Bramha
Bhat Thakur'. The caste certificate issued to him by the Executive
Magistrate is dated 27.02.1991, and this document has not been
explained by the petitioner. The Committee has found that after
applying affinity also the candidate could not be said to be belonging
to Scheduled Tribe Thakur. This consideration by the Scrutiny
Committee is not demonstrated to be perverse.
73. In Writ Petition No. 5718/2004, the Scrutiny Committee
in the impugned order , in paragraph no.5, has found that Thakur's
are found in different caste such as Kshtriya Thakur, Rajput Thakur,
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Vashya Thakur, Pardeshi Thakur and Sindhi Thakur. It is also noted
by the Committee that Thakur is called Balutedar caste such as Gram
Bhat and Bramha Bhat. It is in this backdrop, that the Committee
has looked into the documents, applied affinity test and found that
the petitioner does not belong to Thakur Scheduled Tribe.
74. In Writ Petition No. 2352/2002, in impugned order dated
05.04.2002, after mentioning documents produced by the petitioner,
the Scrutiny Committee has again made similar observations and
pointed out that only on the basis of documents one cannot decide
whether the person mentioned in those documents belong to
Thakur caste or Thakur Tribe i.e. Scheduled tribe.
75. The order impugned in Writ Petition No. 5817/2004 is
dated 30.08.2004, and there in paragraph no.5, again similar
observations have been made by the Committee. It has applied
affinity test and came to the conclusion that the candidate before it
does not belong to Thakur Scheduled Tribe. In view of these
observations of the Committee, reliance upon two validities given to
cousins of petitioner, cannot be said to be decisive.
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76. In Writ Petition No. 3605/2004, the impugned order is
dated 27.01.2004. The Committee has after mentioning documents
produced by the petitioner, has in paragraph nos. 6 and 7 recorded
similar observations. While considering the contentions of candidate
in paragraph no. 15[ii], the Committee has also found that caste of
grandfather Gulabrao Tukaramji Wankhede was recorded as 'Bhat',
th th
when he passed 5 standard. In 7 standard, his caste was found
recorded as Thakur. Because of this finding and use of affinity test,
validities given to relatives on 09.06.2000, 02.06.1999 and
09.06.2000, have been discarded. The Committee finds that those
validities were given on the basis of orders of High Court and at that
juncture concerned validity recepients suppressed the information
which came to its notice in police vigilance inquiry. It is to be noted
that these validities are before coming into force of the Act no.23 of
2001, and hence, cannot be said to be decisive.
77. In Writ Petition No. 4099/2005, Shri Sohoni, learned
counsel has submitted that the vigilance inquiry was carried only
with mother and wife of petitioner. Perusal of the impugned order
dated 21.03.2005, shows that there in paragraph no.6, after making
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similar observations and reference to vigilance enquiry, the
candidate was given opportunity. The vigilance cell could bring on
record entry dated 30.06.1973 in case of petitioner himself, which
mentioned his caste as Rajput. The records are maintained by Smt.
Dhanabai Vidyalaya, Balapur. Contention of petitioner is, therefore,
erroneous.
78. In Writ Petition No. 1494/2004, Shri Saboo, learned
counsel has relied upon the validity given to relative on 24.10.2013.
Impugned order in the matter is dated 25.02.2004. Validity
therefore, is obviously after it, and it is subject to decision of the
Special Leave Petition filed before the Hon'ble Supreme Court.
Petitioner has also produced an affidavit dated 10.08.2017, tracing
out for the first time relationship with validity holder Gopal. Thus,
new evidence is being brought on record. Petitioner does not
mention that while giving validity to Gopal, order dated
25.02.2004, invalidating his caste claim was looked into by the
Committee. The exercise undertaken by the Committee in case of
petitioner Ganesh and its observations are on same lines as
mentioned by us supra, and petitioner has not assailed the same.
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79. In Writ Petition No. 4186/2007, the impugned order of
Scrutiny Committee dated 16.04.2007 shows that after mentioning
documents in paragraph no.4, the Committee mentions findings of
vigilance inquiry. It appears that in Writ Petition No. 2550/2004,
petitioner was permitted to prosecute his studies in D.Ed. Course
and his caste claim was to be decided within a period of 4 months.
The Committee has then framed points for determination.
Paragraph no.1[ii], shows a finding that old documents record
caste as Thakur and not Tribe as Thakur. The Scrutiny Committee
has then applied affinity test and concluded that it was not going
behind the constitutional entry, as there was a caste carrying same
nomenclature. It has relied upon judgment of Division Bench of this
Court reported in case of Maharashtra Adivasi Thakur Jamat Seva
Mandal and others .vrs. State of Maharashtra and others (supra), for
that purpose. Thus, there is conscious consideration and a finding
that as a forward caste by name Thakur only exits, documents
mentioning caste as Thakur cannot be conclusive of claim as
Scheduled Tribe Thakur.
80. In Writ Petition No. 726/2004, the Scrutiny Committee
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has passed an order on 07.02.2004, and consideration therein,
particularly paragraph no.4 shows that the documents mentioning
caste of Sunanda Bhuyar, Dattatraya Bhuyar and Digambar Bhuyar,
as Bhat, were traced out by the police vigilance cell. Petitioner
claimed that these persons are not related to her, but, even in case of
paternal uncle of petitioner, caste is found recorded as Bhat only on
21.10.1935. In this situation, the Committee has after applying
affinity test, recorded a finding that petitioner does not belong to
Thakur Scheduled Tribe. It is to be noted that burden to establish
caste claim is upon the petitioner, and petitioner Ku. Pushpashila
Bhuyar was given full opportunity to substantiate it. She has not
even attempted to demonstrate that the Scrutiny Committee did not
accord her necessary opportunity.
81. Arguments of Shri Kalmegh, learned Counsel for
petitioner in Writ Petition No.1553/2004, are not much different.
There a Civil Application No. 2813/2017 has been taken out seeking
leave to produce documents. Effort is to bring on record new
documents and effort is to also to place the same on record.
Petitioner in the proposed amendment submits that he learnt about
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the documents of grand father and great grand father mentioning
caste as Thakur Scheduled Tribe in their school records.
82. Order of the Scrutiny Committee dated 16.12.2003,
impugned therein by the petitioner Ku. Pranita Shankapal, shows
that she has not given those documents to the Scrutiny Committee
and has not disclosed the details of education of grand father or
great grand father. In paragraph no.5, the Scrutiny Committee
points out how word 'Thakur' cannot be determinative and caste
with similar names exists in Kshtriya, Rajput, Vaishya, Pardeshi and
Sindhi communities. It again points out that Thakurs in different
communities is Balutedar caste, such as Grambhat and Bramhabhat.
These findings are not shown to be perverse. Hearing after service
of vigilance cell report, was attended to by father of the petitioner
and there again he did not bother to point out details of education of
his father or of his grand father. In this situation, in the light of the
findings recorded by the Scrutiny Committee, the effort to introduce
alleged old documents at this stage cannot further the case of the
petitioner at all. On the contrary, the same cannot be countenanced.
83. Accordingly, in view of above discussion, we dismiss all
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the Writ Petitions. Rule discharged, however, in the facts and
circumstances of the case, there shall be no order as to cost.
JUDGE JUDGE
84. At this stage, learned Counsel appearing for petitioners
in Writ Petition Nos.3227/2004, 2432/2010, 619/2005, 620/2005,
6026/2006, 726/2004, 2341/2005, 2912/2004, 4069/2004,
2516/2004, 4714/2004, 447/2002, 957/2002, 1494/2004,
2489/2004, 2595/2004, 2596/2004, 2889/2002, 2890/2002,
2959/2002, 2960/2002, 3121/2002, 3387/2002, 3389/2002, and
4751/2004 seek continuation of interim orders for a further period
of eight weeks as petitioners are in employment.
85. The learned A.G.P. is opposing the request. However, in
the interest of justice, we continue that order for a further period of
eight weeks, and it shall cease to operate automatically thereafter.
JUDGE JUDGE
Rgd.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
WRIT PETITION NOs. 4198/2005, 564/2009, 804/2002,
2054/2004, 4875/2004, 619/2005, 620/2005, 6026/2005,
3024/2002, 5718/2004, 2352/2002, 5817/2004, 3605/2004,
4099/2005, 1494/2004, 726/2004, 1553/2004, 4186/2007,
2516/2004, 2959/2002, 2918/2004, 3121/2002, 1838/2002,
2489/2004, 2960/2002, 3227/2004, 3387/2002, 3185/2004,
4105/2002, 3389/2002, 4751/2004, 6457/2006, 4069/2004,
957/2002, 2432/2010, 1000/2010, 3287/2002, 4714/2004,
6104/2004, 2341/2005, 2912/2004, 447/2002, 2596/2004,
2595/2004, 3216/2004, 2889/2002, 2890/2002 & 446/2002.
…...........
WRIT PETITION NO. 4198 OF 2005.
Ku. Chhaya d/o Jasvantsingh Hajari,
(Nee Sou. Chhaya Brajendrasingh Thakur)
Aged about 42 years, Occupation – Service,
resident of plot no.25, Virat Nagar,
Behind DMRL, Hyderabad 500 079
(Andhra Pradesh). ... PETITIONER.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Tq. And District
Amravati.
2. The State of Maharashtra,
through its' Secretary,
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Department of Tribal Development
Mantralaya, Fort,
Mumbai – 400 032.
3. Indian Bureau of Mines,
Indira Bhawan, Civil Lines,
Nagpur – 400 001
through its Controller General. ... RESPONDENTS .
Shri A.M. Gordey, Senior Advocate with Ms. Raskar, Advocate
for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri S.A. Chaudhari, Advocate for Respondent No.3.
WITH
WRIT PETITION NO. 564 OF 2009.
Sangita d/o Ramkrishna Thakur,
Aged about 30 years, Occupation – Service,
resident of Deepali Nagar, Jalam Road,
Khamgaon. ... PETITIONER.
VERSUS
1. The Scheduled Tribe Caste
Certificate Scrutiny Committee
Irwin Chowk,
Amravati.
2. The Superintendent of Posts Offices,
Buldhana Division, Budhana. ... RESPONDENTS .
Shri R.S. Parsodkar, Advocate for the Petitioner.
Assistant Government Pleader for Respondent No. 1.
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WITH
WRIT PETITION NO. 804 OF 2002.
Sunilkumar Rameshwar Gathe,
Age 26 years, Occupation – Nil,
resident of at and PO Asalgaon,
Tq. Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
Department of Tribal Welfare,
Mantralaya, Mumbai,
[Copy to be served on Govt.
Pleader, High Court Building,
at Nagpur].
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman.
3. the Sub Divisional Officer,
Jalgaon Jamod, District Buldhana.
4. The Maharashtra State Electricity
Board, through its Superintending Engineer,
[Sanchalan and Suwyawstha Mandal]
Vidyut Bhavan, Chikhli Road,
Buldhana, District Buldhana.
5. The Collector,
Collectorate, Buldhana. ... RESPONDENTS .
Shri R.S. Parsodkar, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3 and 5
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WITH
WRIT PETITION NO. 2054 OF 2004.
Bhalchandra s/o Rameshwar Gathe,
Age Adult, Unemployed,
resident of Village Asalgaon (Bazar)
Tq. Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai – 32.
2. The Scheduled Tribe Caste
Certificate Verification Committee
Amravati Division, Amravati,
Through its Chairman/Director.
3. The Chief Executive Officer,
Zilla Parishad, Buldhana,
District Buldhana. ... RESPONDENTS .
Shri R.S. Parsodkar, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Mrs. Indira Bodade, Advocate for Respondent No. 3
WITH
WRIT PETITION NO. 4875 OF 2004.
Sanjay s/o Shankarrao Pawar,
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Aged about 30 years, Occupation – Service,
resident of Satefal, Tq. Ner,
District Yavatmal. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Department of Tribal Welfare,
Mantralaya, Mumbai,
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman.
3. The Tahsildar, Tahsil Office,
Ner, Tal. Ner, District Yavatmal.
4. Block Development Officer,
Panchayat Samiti, Ner, Tq. Ner,
District Yavatmal.
5. Collector, Yavatmal,
District Yavatmal. ... RESPONDENTS .
Shri A.J. Gilda, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents
WITH
WRIT PETITION NO. 619 OF 2005.
Ku. Jyoti d/o Tulsiramji Donge,
Aged about 35 years, Occupation – Service,
resident of Jalgaon Jamod,
District Buldhana. ... PETITIONER.
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VERSUS
1. Municipal Council, Jalgaon Jamod,
District Buldhana,
through its Chief Officer.
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati. ... RESPONDENTS .
Ms. P. Rane, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No. 2.
WITH
WRIT PETITION NO. 620 OF 2005.
Ashok s/o Wasudeo Gathe,
Aged about 39 years, Occupation – Service,
resident of Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. Divisional Controller,
Maharashtra State Road Transport
Corporation, Buldhana.
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati. ... RESPONDENTS .
Ms. P. Rane, Advocate for Petitioner.
Shri S.C. Mehadia, Advocate for Respondent No.1.
Ms. N.P. Mehta, A.G.P. for Respondent No.2.
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WITH
WRIT PETITION NO. 6026 OF 2005.
Ku. Kalpana d/o Pralhad Gathe,
Age about 33 years, Occupation – Nil,
resident of Asalgaon,
Tq. Jalgaon Jamod,
District Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through the Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
2. The Scheduled Tribe Caste
Certificate Verification Committee,
through nit's Chairman/Director,
Amravati Division, Amravati. ... RESPONDENTS .
Ms. P.D. Rane, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents
WITH
WRIT PETITION NO. 3024 OF 2002.
Digambar son of Manohar Dahake
(Dead through L.Rs.)
1. Pravina Digambar Dahake,
Aged about 41 years, resident of
Bhaji Bajar, Amravati
Occupation – Housewife.
2. Samrudhi Digambar Dahake,
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aged about 16 years, Occupation – Student,
r/o. Bhaji Bazar, Amravati.
3. Sanskruti Digambar Dahake,
aged about 8 years, Occupation – Student,
r/o Bhaji Bazar, Amravati. ... PETITIONERS.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman.
2. Amravati Municipal Corporation,
through its Municipal Commissioner,
Amravati.
3. State Election Commissioner,
Mumbai, Administrative Building
Opp. Mantralaya, Mumbai 400 032.
4. State of Maharashtra,
through Secretary,
Urban Development Department,
Mantralaya, Mumbai 400 032. ... RESPONDENTS .
Shri R.M. Ahirrao, Advocate for Petitioners.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 4.
Shri M.K. Pathan, Advocate for Respondent no.2
Mrs. T.D. Khade, Advocate for Respondent No.3.
WITH
WRIT PETITION NO. 5718 OF 2004.
Ku. Nalini d/o Dhyaneshwarao Tayade
(Sou. Nalini w/o Pradip Khare)
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Aged about 42 years, Occ – Service,
resident of Satephal, Tq. Ner,
District Yavatmal. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Chairman, Irvin Square,
Amravati.
2. Zilla Parishad, Yavatmal,
through its Chief Executive Officer,
Yavatmal. ... RESPONDENTS .
Shri M.I. Dhatrak, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No. 1.
WITH
WRIT PETITION NO. 2352 OF 2002.
Santosh Atmaram Morey
Aged about 35 years, Occu – Service,
resident of IUDP Colony
Washim, District Washim. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through Ministry of Home Affairs,
through its Secretary,
Mantralaya, Mumbai – 400032.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Through its Dy. Director,
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Amravati.
3. Superintendent of Police, Washim.
4. Director General of Police,
having Office near Regal Theatre,
Kulaba, Mumbai. ... RESPONDENTS .
Shri S.P. Palshikar/N.C. Phadnis, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 5817 OF 2004.
Amol s/o Digambar Chavan
Aged about years, Occupation Student,
resident of Hanuman Nagar,
Nanded. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through Ministry of Tribal Development,
Mantralaya, Mumbai – 400 032.
through its Secretary.
2. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Through its
Secretary.
3. Principal, Guru Govindsingh College
of Engineering, Nanded. ... RESPONDENTS .
Mrs. R.V. Sirpurkar, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
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WITH
WRIT PETITION NO. 3605 OF 2004.
Dr. Pramod s/o Ambadas Wankhede,
Aged about 42 years, Occupation
Medical Practitioner, resident of
Khopoli, Tq. Kholapur,
District Raigadh. ... PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai – 32.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati Division, Amravati,
Through its Deputy Director (R)
and MemberSecretary, having
its office at Amravati,
District Amravati. ... RESPONDENTS .
Shri Gopal Mishra, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 4099 OF 2005.
Madansingh Karansingh Thakur,
Aged about 44 years, Occupation
Service, resident of Balapur,
Tq. Balapur, District Akola. ... PETITIONER.
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VERSUS
1. The State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai – 32.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati Division, Amravati,
Through its Deputy Director
and MemberSecretary. ... RESPONDENTS .
Shri S.V. Sohoni, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 1494 OF 2004.
Ganesh s/o Krushnarao Bayaskar,
Aged about 31 years, Occupation
Service, resident of Mr. Mahurkar's
Flour Mill, Hanuman Nagar,
Chhoti Umari, Akola 444 005. ... PETITIONER.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims,
Amravati
2. The Deputy Director of Education,
Amravati Region, Amravati. ... RESPONDENTS .
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Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 726 OF 2004.
Ku. Pushpashila d/o Punjabrao Bhuyar,
Aged 35 years, Occupation
Service, [presently working as
Postal Assistant in the office of
Sr. Superintendent of Post Office,
Nagpur], resident of Tahsil and
District Nagpur (Maharashtra). ... PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Department of Tribal Development,
Mantralaya, Mumbai – 32.
2. The Chairman and the Dy. Director,
Scheduled Tribe Caste Scrutiny
Committee, Giripeth,
Nagpur (MS).
3. Sr. Superintendent of Post Offices,
Nagpur MFL Division,
Nagpur (MS). ... RESPONDENTS .
Shri H.D. Dangre, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri R.S. Sundram, Advocate for Respondent No.3.
WITH
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WRIT PETITION NO. 1553 OF 2004.
Ku. Parinita Vinayakrao Shankhpal (Thakur)
Aged about 26 years, Occupation
Student, resident of Vakratund Apartments,
nd
2 Floor, Amrut Nagar, Jalamb Road,
Khamgaon, Taluq Khangaon,
District Buldhana. ... PETITIONER.
VERSUS
Committee for Scrutiny and
Verification of Tribe Claims,
Amravati, Near Irwin Chowk,
Morshi Road, Amravati. ... RESPONDENT .
Shri A.P. Kalmegh, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent.
WITH
WRIT PETITION NO. 4186 OF 2007.
Rupesh s/o Tulshiram Suryawanshi,
Aged about 22 years, Occupation
Student, resident of Behind Bombay
Dying, at Post Murtizapur,
District Akola. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
2. The Scheduled Tribe Caste
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Certificate Verification Committee,
Through its Chairman/Director,
Amravati Division,
Amravati. ... RESPONDENTS .
Shri V.R. Choudhari, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 2516 OF 2004.
Nitinkumar Bhagwat Thakur
Aged about 26 years, Occupation – nil,
resident of PO Daserkhed, Tq. Malkapur,
Buldhana. ... PETITIONER.
VERSUS
1. The State of Maharashtra,
Through the Secretary,
Tribal Development Department
Mantralaya, Mumbai.
2. The Scheduled Tribe Caste
Certificate Verification Committee,
Through its Chairman/Director,
Amravati Division, Amravati.
3. The Chief Executive Officer
Zilla Parishad,
Buldhana. ... RESPONDENTS .
Shri A.P. Kalmegh Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
None for Respondent no.3Served.
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WITH
WRIT PETITION NO. 2959 OF 2002.
Vivek s/o Vinayakrao Bhuyar,
Aged about 24 years, Occupation – Student,
resident of Bhartipura, Karanja Lad,
Distt. Washim. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims,
through its Dy. Director,
Amravati.
2. Principal, College of Engineering,
V.Y.M.S. Badnera, Amravati. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No. 1.
None for respondent no.2 – served.
WITH
WRIT PETITION NO. 2918 OF 2004.
Aditya S/o Anil Wardekar
Aged about 16 years,
Being minor through legal guardian father
Shri. Anil S/o Marotrao Wardekar
Aged about 45 years, Occupation – Service,
resident of Mangrulpir, Tal. Mangrulpir,
Dist. Washim ... PETITIONER.
VERSUS
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1. State of Maharashtra,
Through the Secretary,
Tribal Development Department
Mantralaya, Mumbai – 32.
2. Caste Scrutiny Committee for
Scheduled Tribe
Through its Presiding Member and
Additional Commissioner, Tribal
Development Department,
Amravati. ... RESPONDENTS .
Shri V.R. Choudhary, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3121 OF 2002.
Ku. Vandana d/o Devidas More,
Aged about 19 years, Occupation – Service,
resident of Chandur Khadki,
Tah. Akola. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of tribe claims,
through its Dy. Director,
Amravati
2. Civil Surgeon
Office of District Civil Surgeon
Akola. ... RESPONDENTS .
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Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 1838 OF 2002.
Dilip Vishwanath Dongre
38 years, (Service in State
Bank of India, Branch at
Shegaon, Dist. Buldhana ... PETITIONER.
VERSUS
1. Committee of Scrutiny and caste verification
of Tribe Claims, Amraoti.
2. State of Maharashtra through Secretary,
Social and welfare Deptt., Mantralaya,
Bombay32.
3. Branch Manager, State Bank of India,
Branch at Shegaon, Distt. Buldhana ... RESPONDENTS .
Shri P.S. Jaiswal, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
None for respondent no.3 – served.
WITH
WRIT PETITION NO. 2489 OF 2004.
Prakash Waman Ingale
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Aged 46 years, Occupation – Service,
resident of Shegaon,
Dist. Buldana ... PETITIONER.
VERSUS
1. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati
2. Dy. Director, Vocational and Training,
Regional Office, Amravati. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 2960 OF 2002.
Ku. Bhagyashri d/o Vinayakrao Bhuyar
Aged about 24 years, Occupation – Student,
resident of Bhartipura, Karanja Lad,
Dist. Washim ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of tribe claims
through its Dy. Director, Amravati
2. Principal, District Education &
Training Institute, Akola.
3. Director, Maharashtra State Council
of Education Research and Training,
Pune.
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4. Commissioner, Maharashtra State
Examination Board, Pune. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1
Shri Anand Parchure, Advocate for Respondent No.4
WITH
WRIT PETITION NO. 3227 OF 2004.
Rajesh S/o Jagatpalsingh Gaur
Aged about 42 years,
resident of C/o Shri. M.M. Chauhan, 43,
Samarth Nagar (East), Behind FCI Godown,
Nagpur (presently working as Motor Vehicle
Inspector posted at Thane) ... PETITIONER.
VERSUS
1. State of Maharashtra through
Secretary, Ministry of Transport
Department, Mantralaya, Mumbai – 400032.
2. Committee for Scrutiny and
Verification of Tribe Claims, Amravati,
through its Deputy Director, Irvin square,
Amravati.
3. Commissioner of Transport
(Maharashtra State) office of the
Commissionarraite, New Administrative Building,
Government Colony, Bandra (East),
Mumbai ... RESPONDENTS .
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Shri N.C. Phadnis, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3387 OF 2002.
Subhash s/o Manikrao Ingle
Aged about 40 years, Occupation – Service,
resident of Upper wardha canal
Sub division No.3, Kurha,
Dist. Amravati. ... PETITIONER.
VERSUS
1. State of Maharashtra,
Through its Secretary,
Irrigation Department
Mantralaya, Mumbai – 32.
2. Committee for Scrutiny and
Verification of Tribe Claims,
Amravati. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3185 OF 2004.
Ku. Jyoti Sugdeo Tayade
Aged about 31 years, Occupation – Service,
resident of Ganeshnagar,
Dist. Amravati ... PETITIONER.
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VERSUS
1. The Committee for Scrutiny and
Verification of Tribe Claims, Amravati
through its Chairman.
2. The Municipal Council, Daryapur,
through its Chief Officer ... RESPONDENTS .
Shri A.M. Ahirrao, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1.
Shri S.M. Puranik, Advocate for Respondent No.2.
WITH
WRIT PETITION NO. 4105 OF 2002.
Ku. Seema Sudhakar More
Aged about 22 years, Occupation – Student,
resident of Waqad, Taluq Risod
District Washim ... PETITIONER.
VERSUS
1. The Committee for Scrutiny and
Verification of Tribal Claims,
Adivasi Bhawan, Giripeth, Nagpur
through its chairman
2. Principal, Govt. Jr. College of Education,
Yavatmal, Taluq and District
Yavatmal. ... RESPONDENTS .
Shri R.M. Ahirrao Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
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WITH
WRIT PETITION NO. 3389 OF 2002.
Varsha d/o Narayan Bayaskar
Aged about 18 years, Occupation – Education,
resident of Rajanda, Th. Barshi Takli,
Dist. Akola ... PETITIONER.
VERSUS
1. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati
2. Director of Medical Education
and Research, Maharashtra State,
Saint George Hospital Compound,
Dental College Bldg. Fort, Mumbai. ... RESPONDENTS .
Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 4751 OF 2004.
Ku. Jyostna d/o Ramdas Pawar
Aged about 35 years, Occupation – Service,
resident of Wardha
Distt. Wardha ... PETITIONER.
VERSUS
1. The Committee for Scrutiny &
Verification of Tribe Claim,
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Amravati
2. Education Officer,
Zilla Parishad, Wardha ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1.
Shri P.D. Meghe, Advocate for Respondent no.2.
WITH
WRIT PETITION NO. 6457 OF 2006.
Ajay Jawaharlal Channor
Aged about 27 years, Occupation – Business,
resident of Opp. Union Bank, Mahesh Nagar,
Shanti Nagar Road, Nagpur
(Presently elected Corporation from
Prabhag No.18 of Nagpur Municipal
Corporation) ... PETITIONER.
VERSUS
1. State of Maharashtra through its
Secretary, Ministry of Tribal Welfare
Department, Mantralaya, Mumbai – 400032.
2. Scheduled Tribe Caste Certificate
Scrutiny Committee, Nagpur Division,
Adivasi Vikas Bhavan, Giripeth, Nagpur
through its Vice Chairman/Joint Commissioner.
3. Collector, Nagpur
4. Municipal Commissioner, Nagpur
Municipal Corporation, Civil Lines,
Nagpur
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5. State Election Commission, New
Administrative Building, Mantralaya,
Madam Cama Road, Mumbai. ... RESPONDENTS .
Shri N. Phadnis, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3.
Shri M.V. Samarth for Respondent No.4.
WITH
WRIT PETITION NO. 4069 OF 2004.
Santoshkumar Rameshsing Thakur
Aged about 35 years, Occupation – nil,
resident of Ramnagar,
Akola ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary, Tribal
Development Department, Mantralaya,
Mumbai – 32.
2. The Scrutiny Committee for
verification of Caste Certificates
of Scheduled Tribes and Scheduled
Castes, Amravati Division, Amravati,
through its Member secretary.
3. Akola Municipal Corporation, Akola
through its commissioner.
4. The Tahsildar, Akola ... RESPONDENTS .
Shri S.G. Joshi Advocate for Petitioner.
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Ms. N.P. Mehta, A.G.P. for Respondent No. 1, 2 and 4
Shri Kiran Malokar, Advocate for Respondent Nos. 3.
WITH
WRIT PETITION NO. 957 OF 2002.
Ku. Arati S/o Gajanan Ingale
Aged about 19 years, Occupation – Student,
resident of Gopalkhed, Post Gandhigram,
Tahsil & District Akola ... PETITIONER.
VERSUS
1. The Scrutiny Committee for Verification
of Tribe Claim, through its Dy. Director
Amravati.
2. Principal, Govt. Junior College of
Education for Women, Akola
3. Commissioner, Maharashtra State
Education Board, Pune. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri. A. Parchure, Advocate for Respondent No.3
WITH
WRIT PETITION NO. 2432 OF 2010.
Meena d/o Shivraj Payak
Aged about 39 years, Occupation – Service
as Clerk with Respondent no.3,
Resident of Near Sheetala Mata Mandir,
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Kham Talao, Bhandara. ... PETITIONER.
VERSUS
1. State of Maharashtra, through its
secretary, Tribal Welfare Department,
Mantralaya, Mumbai 400032
2. Scheduled Tribe Certificate Scrutiny
Committee, Nagpur Division, Nagpur,
Adivasi Vikas Bhavan, Giripeth,
Nagpur through its Vice Chairman
3. Bhandara Urban CoOperative Bank
Limited, Gandhi Square, Bhandara,
Tahsil and District Bhandara through
its Chief Executive Officer. ... RESPONDENTS .
Shri N.C. Phadnis Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri Paliwal, Advocate for Respondent No.3.
WITH
WRIT PETITION NO. 1000 OF 2010.
Kishor S/o Rameshwar Thakur
Aged about 21 years, Occupation – Student,
Resident of Raigad Colony, Near Grain Market
Vishnuwadi, Buldhana
Tahsi – Buldhana, District Buldhana ... PETITIONER.
VERSUS
1. Committee for Scrutiny and Verification
of Tribe Claim Through its Chairman
Committee For Scheduled Tribe Claim
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Irvin Chowk, Amravati, District – Amravati
2. State of Maharashtra
Through its Secretary
Education Department,
Mantralaya, Mumbai.
3. The Directorate of Technical Education
Maharashtra State, Mumbai
3, Mahapalika Marg, Post Box No.1967,
Mumbai 400001
4. The Principal
MIT College of Enginering,
Kothrud, Pune 411029
5. The Registrar,
Pune University, Pune
Pune University Road,
Pune 411038 ... RESPONDENTS .
Shri R.P. Dhanwat Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3.
WITH
WRIT PETITION NO. 3287 OF 2002.
Deepak S/o Chandraprakash Thakur
Aged about 20 years, Occupation – Student,
resident of Yashoda Nagar N.II,
Amravati ... PETITIONER.
VERSUS
1. State of Maharashtra
Department of Tribal Development,
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Mantralaya, Mumbai.
Through Secretary
2. Committee For Scrutiny and Verification
of Tribe Claims, Amravati.
Through Member Secretary
3. Government College of Engineering,
Amravati, through its principal ... RESPONDENTS .
Shri A.Y. Kapgate Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 4714 OF 2004.
Hemlata Shamrao Kadam
@ Hemlata Pradip Bhuyar
Age 41 years, Occupation – Service,
Resident of N6, Telcom Society, Plot no.52,
Bajrang Chowk, CIDCO,
Aurangabad ... PETITIONER.
VERSUS
1. The State of Maharashtra
through it's Secretary,
Tribal Welfare Department,
Mantralaya, Mumbai.
2. Chairman, Committee for
Scrutiny & verification of Tribes
Claim, Amravati.
3. Sub Divisional Magistrate Karanja,
Dist. Akola
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4. Education Officer, Municipal Corporation,
Aurangabad.
5. Dy. Commissioner Municipal
Corporation, Aurangabad ... RESPONDENTS .
Shri A.M. Kukday, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 to 3
Shri M.V. Samarth Advocate, for Respondent Nos.4 & 5.
WITH
WRIT PETITION NO. 6104 OF 2004.
Miss Pooja D/o Chndraprakash Thakur
Aged about 17 years, Occupation – Student,
Through her Natural Guardian Mother
Smt. Rajani Wd/o Chandraprakash Thakur,
Aged about 47 Years, Occupation – Service,
Resident of Yashoda Nagar, Amravati
Tq. and Distt. Amravati ... PETITIONER.
VERSUS
1. The Committee for Scrutiny &
Verification of Tribe Claim,
Amravati Division, Amravati
Tq. and Distt. Amravati
2. The State of Maharashtra,
Through Its Secretary,
Department of Tribal Development,
Mantralya, Fort, Mumbai 400032
3. Maharashtra State Education Research
and Training Council, Pune
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4. The Principal, Maharashtra Cosmopolitan
Education Society, camp Pune1 ... RESPONDENTS .
Shri S.A. Gordey, Senior Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
WITH
WRIT PETITION NO. 2341 OF 2005.
Satish Suryakant Suradkar
Aged about 25 years, Occupation – presently nil,
resident of Shivshankar Nagar,
Chikhali Road, near Shree Provigence,
Taluka Buldana, District Buldana ... PETITIONER.
VERSUS
1. The State of Maharashtra,
through its Secretary, Tribal
Development Department,
Mantralaya, Mumbai32.
2. Committee for Scrutiny & Verification
of Tribe Claims, Amravati
through its Chairman.
3. The Collector, Buldhana.
4. The Sub Divisional Magistrate,
Buldana. ... RESPONDENTS .
Shri S.G. Joshi, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
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WITH
WRIT PETITION NO. 2912 OF 2004.
Vinod S/o Rangnath Shinde
Aged about 27 years, Occupation – Nil,
resident of Gajanan Apartment, Tapdiya Nagar,
Akola ... PETITIONER.
VERSUS
1. State of Maharashtra, through
its secretary, Tribal Welfare Department,
Mantralaya, Mumbai32.
2. The Chairman, Committee for Scrutiny
& verification of Tribe Claims, Amravati.
3. Chief Executive Officer, Zilla Parishad, Akola
4. Sub Divisional Officer, Akola
District. Akola ... RESPONDENTS .
Shri S.G. Joshi Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 2 & 4.
Shri D.K. Dubey, Advocate for Respondent No. 3.
WITH
WRIT PETITION NO. 447 OF 2002.
Vijay S/o Ramchandra Chavan
Aged about 34 years, Occupation – Service,
resident of Zilla Parishad Primary
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Marathi School, Umbra Kapsi,
Tahsil & Distt. Washim. ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims
Through it's Dy. Director,
Irvin Chowk, Amravati
2. Zilla Parishad, Washim,
Through its Chief Executrive Officer,
Washim, Distt. Washim. ... RESPONDENTS .
Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent no.1.
Mrs.Indira Bodade Advocate for Respondent No.2.
WITH
WRIT PETITION NO. 2596 OF 2004.
Mangesh s/o Krushnarao Peshave
Aged 34 years, Occupation – Service,
resident of Pimple Nagr, Ranpise Nagar,
Dist. Akola ... PETITIONER.
VERSUS
1. The Collector, Akola Revenue Deptt.
Akola
2. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati. ... RESPONDENTS .
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Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 2595 OF 2004.
Pravin S/o Laxmikant Pise
Aged about 35 years, Occupation – Service,
resident of Shaniwarpura, Akot, Tq. Akot,
District Akola ... PETITIONER.
VERSUS
1. The Deputy Director of Education,
Amravati Region, Walgaon Road,
Amravati
2. Committee for Scrutiny & Verification
of Tribe Claim, Amravati ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondents.
WITH
WRIT PETITION NO. 3216 OF 2004.
Kailash Samadhan alias Devidas Nemade
Aged 31 years, Occupation – Service,
resident of Shegaon,
Distt. Buldhana ... PETITIONER.
VERSUS
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1. The Municipal Council,
Shegaon, Distt. Buldhana
Through its Chief Officer.
2. Committee for Scrutiny &
Verification of Tribe Claim,
Amravati. ... RESPONDENTS .
Shri S.Z. Sonbhadre Advocate for Petitioner.
Shri N.R. Saboo, Advocate for Respondent No.1.
Ms. N.P. Mehta, A.G.P. for Respondent No. 2.
WITH
WRIT PETITION NO. 2889 OF 2002.
Ku. Nandiny d/o Sudhakar Nemade
Aged about 20 years, Occupation – Student,
resident of C/o Regional Workshop,
Khadki, At Akola Dist. Akola ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims
through its Dy. Director,
Amravati.
2. Project Officer, Integrated Tribal
Development Project, Akola
3. The Director, Maharashtra State
Council of Education Research
and Training, Pune. ... RESPONDENTS .
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Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
WITH
WRIT PETITION NO. 2890 OF 2002.
Ku.Vaishali d/o Ramkrushna Pawar
Aged about 19 years, Occupation – Student,
resident of Jalpurna Rest House, Patbandhre
Vasahat, Akola, Dist. Akola ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims
Through its Dy. Director,
Amravati.
2. Principal, Govt. D. Ed. (Girls) College, Akola.
3. Commissioner, Maharashtra State
Examination Board, Pune. ... RESPONDENTS .
Shri N.R. Saboo, Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent Nos. 1 and 2.
Shri Anand Parchure, Advocate for Respondent no.3.
AND
WRIT PETITION NO. 446 OF 2002.
Devidas Pralhad Gaikwad
Aged about 31 years, Occupation – Nil,
Resident of Ukadi, Tahsil Mehkar
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District Buldhana ... PETITIONER.
VERSUS
1. Committee for Scrutiny and
Verification of Tribe Claims through
its Dy. Director, Irvin Chowk, Amravati
2. Maharashtra State Electricity
Board, through its Executive
Engineer, M.S.E.B. Buldhana
Buldhana ... RESPONDENTS .
Shri N.R. Saboo Advocate for Petitioner.
Ms. N.P. Mehta, A.G.P. for Respondent No.1.
Shri. S.V. Purohit, Advocate for Respondent No. 2.
CORAM : B.P. DHARMADHIKARI
AND Z.A. HAQ, JJ.
DATE OF RESERVING JUDGMENT : 07.06.2018.
DATE OF PRONOUNCEMENT : 01.08.2018.
JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
All these matters are placed together jointly for
consideration, as according to all petitioners, question involved is –
When preconstitution documents record the Caste as “Thakur” and
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those documents are genuine, whether the recourse to affinity test is
open? They rely upon the judgment of Hon'ble Supreme Court in
case of Anand .vrs. Committee for Scrutiny and Verification of
Tribe Claims and others (2011 (6) Mh.L.J. 919) , to buttress their
submissions. On the other hand, respondents contend that a Caste
by name “Thakur” exists and said Caste is not a Tribe, and is also
not recognized as Scheduled Caste. It is an Upper Caste and hence,
the old documents or relevance of and reliance upon mention of
Caste as Thakur, therein is not decisive. As the Tribe and Caste have
same name, only way left out is to apply affinity test. AGP's
appearing on behalf of respondent State, state that the judgment of
Hon'ble Supreme Court in case of Anand (supra), does not rule out
relevance and use of affinity test in such facts.
2. In Writ Petition No. 4198/2018, Senior Counsel Shri A.M.
Gordey, appearing on behalf of the petitioner by inviting attention
to the impugned order dated 15.07.2005, submits that in paragraph
no.2 it has looked into old documents like dated 25.06.1928,
03.07.1968 and few other documents. None of these documents are
found to be interpolated. In this situation, recourse to affinity test
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was not warranted and validity ought to have been given. He has
also placed reliance upon observations contained in judgment in case
of Kumari Madhuri Patil and another .vrs. Addl. Commissioner,
(supra), (Paragraph nos. 13[5] and [6]). According to him, the
Vigilance Cell/Research Officer and the Scrutiny Committee in
present matter have breached these directions of Hon'ble Supreme
Court. Vigilance Cell Authorities recorded statement of
neighbours/tenants who allegedly deposed that the petitioner
belong to Rajput caste. A statement of aunt and a friend also came
to be recorded, but, then the Research Officer did not accompany
the Vigilance Cell Squad at that juncture. Traits needed to be
ascertained from some elderly member from the family. Aunt
Krantidevi does not have cordial relations due to a dispute and
therefore, has deliberately deposed against the petitioner. In any
case, old customs like Ghungat, etc., are not decisive in modern
times. Petitioners' say on police vigilance clarified these aspects, but,
it has been ignored. The home enquiry is, therefore, alleged to be
incomplete.
3. It is contended that though traits and customs which have
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come on record are rejected by the Scrutiny Committee, material
looked into by it does not show why it could not have been
accepted. The standard traits of Thakur Scheduled Tribe, if any, are
absent on record. Our attention is also invited to the fact that son of
Aunt Krantidevi by name Vikrant has recorded his caste as Thakur
only on 10.07.1989. The caste of aunt Krantidevi is also recorded as
Thakur on 30.06.2003. Observations of the Hon'ble Supreme Court
in Anand .vrs. Scrutiny Committee (supra), in paragraph nos. 18 to
20, are relied upon to demonstrate how Vigilance Cell report and
traits in this situation needs to be discarded.
4. Ms. Mehta, learned A.G.P. appearing for respondent has
submitted that the petitioner Ku. Chhaya, is upper caste Thakur and
as such mention of caste in her old documents or documents of her
ancestors, is not decisive. Hence, affinity test was must. Chhaya,
was given sufficient opportunity and her reply after show cause
notice on vigilance cell report has been considered. She relies upon
judgment delivered at Aurangabad in case of Monika d/o Satish
Thakur .vrs. State of Maharashtra and others (supra), to urge that
contentions raised by learned Senior Counsel are erroneous and
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unsustainable.
5. Shri N.C. Phadnis, learned counsel appearing for
petitioner in Writ Petition No. 7/2014 had read out the judgment
delivered at Bombay on 22.12.2017 (22.11.2017) in case of Motilal
Namdeo Pawar .Vrs. Scheduled Tribe Scrutiny Committee (supra),
particularly paragraph nos. 1, 12 and 16. He argues that this
judgment clinches the controversy.
6. Shri Parsodkar, learned counsel appearing for petitioner
in Writ Petition No. 564/2009, submits that petitioner d id not get
any effective opportunity as she was unwell. Total 22 documents
were relied upon and though all of them are genuine, the affinity
test has been resorted to. Customs and traits brought on record
have been brushed aside as bookish knowledge and erroneously
“area restriction” has been used to the prejudice of the petitioner.
He submits that as per the information received by petitioner on
01.07.2006, the Scrutiny Committee does not have authentic traits
or customs of Thakur Scheduled Tribe to transparently apply affinity
test.
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7. Shri Parsodkar, learned counsel submits that Writ Petition
Nos.804/2002 and 2054/2002 are by brothers and in identical
fashion, documents have been discarded and affinity favoured. The
validities produced on record of cousin Rajendra and aunt Sheela
have thus been arbitrarily overlooked. He relies upon the family
tree to press relationship with them. The law laid down by this
Court and pointed out to the Scrutiny Committee has been
overlooked. Incident of Totaram Thakur and certificate dated
17.04.1919 and other certificate dated 05.01.1942 establish tribe to
be Thakur only. He fairly states that document dated 05.01.1942 is
not before the Scrutiny Committee. He has drawn attention to the
judgments to demonstrate how entry No.18 pertaining to Gond has
been construed by the Hon'ble Supreme Court in case of Mana Adim
Jamat Mandal .vrs. State of Maharashtra and others (supra). To
challenge finding of upper caste, he places reliance upon judgment
in case of Narendra Dhudku Thakur .vrs. Scheduled Tribe Certificate
Scrutiny Committee, Pune and others (supra). Judgment delivered
by the Division Bench of this Court in Writ Petition No. 4869/2012
in 27.09.2013 (paragraph nos. 3,5,6 and 7) and dated 08.03.2012
in Writ Petition No. 11241/2012 (paragraph no.4), are also relied
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upon by him.
8. He points out previous adjudication and validity and its
consideration in Writ Petition No. 6356/2014 decided on
25.04.2015. He submits that Special Leave Petition against it is
rejected. The judgment of Hon'ble Supreme Court dated 08.03.2017,
is relied upon to point out how “area restrictions” after 1976
amendment, lost its significance. Judgments in case of (1)Sonak
Bakade .vrs. Joint Commissioner and Vice Chairman and others
(supra) (paragraph no.7), (2) Chandrashekhar Gaikwad .vrs. State
of Maharashtra and others (supra) (paragraph no.12) and Narendra
Balaji Ghodmare .vrs. Scheduled Tribe Certificate Scrutiny
Committee, Gadchiroli and others (supra) (paragraph nos. 17 and
18) are relied upon by him.
9. Shri Anup Gilda, learned counsel appearing for petitioner
in Writ Petition No. 4875/2004, addressed the court only on law
points. He has relied upon judgments in case of Vaishali Liladhar
Mahale .vrs. The State of Maharashtra and others (supra)
(paragraph nos. 4,5, and 7) and Pritesh Subhash Thakur .vrs. State
of Maharashtra and others (supra) (paragraph nos.11 and 12). To
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press into the service relevance of old documents and Section 90 of
the Evidence Act, he has relied upon judgment in case of Madhuri
Dhananjay Nalawade .Vrs. State of Maharashtra and others (supra)
(paragraph no.15).
10. On merits he points out that the impugned order
unnecessarily tries to distinguish between Thakur Scheduled Tribe
and Thakur Scheduled Caste. According to him vigilance report is
in favour of petitioner only, finding of affinity is incorrect. In any
case it is insufficient to overlook the old genuine documents.
11. Ms. Rane, learned counsel appearing for petitioners adopts
the above arguments and submits that there are several decisions of
this Court in which because of validity in the family, applying
judgment in case of Apoorva Nichale .Vrs. Divisional Caste Scrutiny
Committee [supra], this Court has directed the Scrutiny Committee
to issue validity to petitioners. She submits that petitioners in Writ
Petition Nos. 619/2005, 620/2005 and 6026/2005 have brought on
record preconstitutional documents which are all found to be
genuine. All these documents record caste as Thakur. Relative of
petitioner in Writ Petition No.620/2005 has been given validity and
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she submits that suitable/appropriate application seeking leave to
produce it on record is being filed today.
12. Shri R.M. Ahirrao, learned Counsel supports above
arguments and states that in Writ Petition No. 3024/2004, the
petitioner had expired and Writ Petition is being prosecuted by legal
heirs for continuing caste benefits.
13. Shri Dhatrak, learned Counsel for petitioners in Writ
Petition No. 5718/2004, Shri Palshikar, learned counsel for
petitioner in Writ Petition No.2352/2002, Shri Jagdale, learned
Counsel for petitioner in Writ Petition No. 872/2002 adopt above
arguments.
14. Shri Sirpurkar, learned counsel for petitioner in Writ
Petition No. 5817/2004, additionally submits that cousins of said
petitioner have validity which has been erroneously rejected by the
Scrutiny Committee.
15. Shri Mishra, learned Counsel for Petitioner in Writ
Petition No. 3605/2004, adds that though all old documents are
consistent with the tribe claim, because of only one stray entry of
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Bhat, the petitioners' caste claim has been invalidated. He submits
that said entry is of one Gulab taken on record on 24.05.2005. He
points out that for very same period, there is another document of
Gulab, which mentions caste as Thakur, and not as Bhat.
Explanation furnished by the petitioner has been erroneously
rejected. He further states that petitioners have not filed validities
with affidavit to demonstrate relationship and the scrutiny
committee has ignored the same by observing that there is no
affidavit. He points out that on 24.01.2011, in Writ Petition
No.9026/2010, validity is given to daughter of petitioner. In Writ
Petition No. 4186/2007, he points submits that there is validity in
favour of one Rupesh. According to him, therefore, order of the
Scrutiny Committee shows total nonapplication of mind.
16. With leave of the Court, Shri Parsodkar, learned counsel
attempted to distinguish the judgment delivered by the Aurangabad
Bench on 04.05.2018 in case of Monika Thakur [supra]. He claims
that said judgment ignores binding precedents and also overlooks
the law laid down by the Hon'ble Supreme Court of India on judicial
discipline in case of (2008) (10) SCC 1 (Official Liquidator .vs.
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Dayanand and others) .
17. Shri Sohoni, learned counsel for petitioner in Writ
Petition No. 4099/2005, submits that in said matter the farce
vigilance enquiry has been conducted by examining only wife and
mother of petitioner.
18. Shri Saboo, learned counsel for petitioner in Writ Petition
No. 1496/20047, states that on 24.10.2013, validity is given to a
relative. He adds that affidavit in support of the family tree has been
filed for the first time in this petition and fairly submits that it was
not before the Scrutiny Committee.
19. Shri Dangre, learned counsel for petitioner in Writ
Petition No. 726/2004, submits that because of Bhat entry dated
21.10.1935, the tribe claim has been invalidated. That document
does not contain full name of grand father and because of this
incomplete and inadmissible entry, other genuine documents have
been overlooked. He further states that the scrutiny committee has
not restored to affinity test also. His contention that there is no
affinity test used while examining the caste claim of Pushpalata in
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Writ Petition No.726/2004, runs contrary to paragraph no.8 of the
impugned order of the Scrutiny Committee. Moreover, the
Committee has in paragraph nos. 4,6 and 7 looked into the entries of
relatives wherein old documents caste is recorded as 'Bhat'.
Petitioner denied her relationship with one Narayan Bhat. However,
the Committee could trace out his relation with Ajab Narayan
Bhuyar, by procuring a document of his date of birth and also a
reported date of birth of male child Narayan Bhat. The said
contention therefore, is, misconceived.
20. Shri Kalmegh, learned counsel adopts the arguments
advanced by various counsel stated above. He states that Civil
Application (W) No. 2813/2017 has been filed in Writ Petition No.
1553/2004, seeking leave to produce new documents. He further
points out that in Writ Petition No. 2516/2004, there is a validity
issued on 30.05.1998 to a relative. He further invites attention to
orders of the Scrutiny Committee to show that it has overlooked
various documents. He is relying upon judgment reported at 2014
[1] All MR 78 ( Vaishali Chatarsing Ingale (Thakur) Vs.
Committee for Scrutiny and Verification of Tribe Claims and
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ors . ) , to point out relevance of such old validity.
21. Respective learned A.G.Ps., have submitted that in all
these matters there is no contention and ground that upper caste
Thakurs do not exist. Various judgments and Texts shows that
Thakur caste and Thakur tribe are different. Thakur Tribe has
become Thakur Scheduled Tribe after 1950, but, difference between
Thakur caste and Thakur Tribe is in existence since beginning.
Reference to this difference by the scrutiny committee and therefore,
its interpretation or mention of caste as Thakur in old documents
therefore, cannot be confused with later concept of “Scheduled
Tribe”. The language employed by the committee members may not
be strictly legal and precise, however, it needs to be understood
liberally in the context of this age old well recognized difference.
When Thakur Scheduled Tribe community is very less in number,
swell therein is due to upper caste people attempting to take benefit
of reservation. Hence, mere relevance of word Thakur, recording
Thakur as caste in old documents is not decisive and affinity test is
the only way out to preserve and protect the interest of real
Scheduled Tribe Thakur community.
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22. Various judgments pointed out by the petitioners
including that of Full Bench judgment in case of Shilpa Vishnu
Thakur .vrs. State of Maharashtra and others (supra), and
Murlidhar Ramkrishna Gathe .vrs. State of Maharashtra and others
(supra), is relied upon for this purpose.
23. It is pointed out that in Writ Petition No.804/2002 and
some other matters petitioners have filed new documents which did
not form part of exercise of verification. These new documents
therefore, have never been subjected to vigilance enquiry. The
validities could have been pointed out to the scrutiny committee
earlier or then at least a correct family tree tracing relationship with
the holders thereof could have been filed before the scrutiny
committee. Submission is, selectively relationship is accepted even
after the scrutiny committee has validated any caste claim. Persons
like petitioners avoided to associate themselves with relatives when
validity is declined by the Scrutiny Committee. .
24. Without prejudice, it is submitted that if this court is
inclined to permit such documents/validity on record, the vigilance
enquiry into such documents cannot be avoided, and therefore,
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remand is the only solution.
25. Before proceeding further, it will be worthwhile to
mention that the petitioners bank upon judgment of Division Bench
of this Court delivered at Bombay in Writ Petition No. 7/2014
Motilal Namdeo Pawar .Vrs. Scheduled Tribe Scrutiny
Committee. They have relied upon several other judgments which
takes similar view. Respondents rely upon Division Bench judgment
delivered at Aurangabad in Writ Petition No. 10123/2010 and others
dated 04.05.2018 ( Monika d/o Satish Thakur, Chetan s/o
Satishchandra Thakur .vrs. State of Maharashtra and others).
This judgment is reported at 2018 Law Suit (Bombay) 816. They
point out that after considering the judgments relied upon by
petitioners and other judgments which take note of existence of
Upper Caste Thakur, judgment in case of Monika (supra), must be
accepted as laying down the law which must be held to be binding.
Their effort is to demonstrate that judgment in case of Motilal Pawar
(supra), is on facts, does not lay down law, and therefore, is not a
precedent at all.
26. In the light of these arguments, petitioners have also
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relied upon the judgment of Hon'ble Supreme Court reported at
(2008) (10) SCC 1 (Official Liquidator .vs. Dayanand and
others) , to point out how judicial discipline mandates adherence. to
Division Bench judgment in case of Motilal and others (supra). We
will refer to all these judgments little later in the course of this
judgment.
27. We find it appropriate to begin with consideration of the
judgments which take one or the other view on the controversy.
28. Judgment reported at 2017 (1) Mh.L.J. 814 (Madhuri
Dhananjay Nalawade .Vrs. State of Maharashtra and others) , is
relied upon to urge that when documents produced in support of
Caste claim which are more than 30 years old, presumption under
Section 90 of the Evidence Act, 1872 is attracted. In the said
judgment, reliance was placed on a Caste validity certificate issued to
one Rajendra. This certificate was discarded by the Scrutiny
Committee observing that it was granted as per legal position then
prevailing. In addition, petitioner relied upon old documents dated
15.07.1910, 15.03.1913, 15.06.1914. It is in this background that in
paragraph no.13, the Division Bench has recorded that the Scrutiny
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Committee fell in error in discarding the validity. Change in law is
held to be an irrelevant factor and in the light of the judgment in
case of Apoorva Nichale .Vrs. Divisional Caste Scrutiny
Committee (2010 (10) Mh.L.J. 401) , the Committee found that
said validity could have been used by the petitioner. It is in this
background that the Division Bench makes reference to Section 90 of
the Evidence Act, in paragraph no.15 of its judgment.
29. Division Bench at Nagpur in case of Vijaykumar
Narayan rao Kale .vrs. State of Maharashtra (2013 (5) Mh.L.J.
930) , has considered the provisions of the Maharashtra Scheduled
Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance and Verification of) Caste
Certificates Act, 2000 (Maharashtra Act No. 23 of 2001) (hereinafter
referred to as “ the Act No.23 of 2001 ” for short), while examining a
challenge to old order Additional Commissioner dated 07.08.1993,
dismissing the appeal against the invalidation by the Committee as
per procedure then in force. This Court has found that in said
Enactment, the caste validity certificates issued before its coming
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into force, have not been recognized. One of us (B.P.Dharmadhikari,
J), is party to said judgment.
30. In 2018 SCC Online Bom. 1035 (Pritesh Subhash
Thakur .vrs. State of Maharashtra and others) , Division Bench of
this Court at Bombay has in paragraph no.12 found that it was not
open to the Scrutiny Committee to reach a conclusion that Pritesh
belongs to Caste Thakur, and not Thakur, Scheduled Tribe.
Committee is duty bound to read the entry in Constitution,
Scheduled Tribe Order, 1950 at Sr.No.44 as it is, and it was not open
to the Committee to observe that Thakur Caste existed. It is in this
backdrop that recourse to affinity test by the Committee is found
erroneous. To support these findings, judgment of Hon'ble Supreme
Court in case of Anand .vrs. Committee (supra), has been relied
upon. Thus, the Division Bench here does not rule out or conclude
that Upper Caste Thakur are not in existence.
31. In 2017 SCC Online Bombay 8784 (Vaishali Liladhar
Mahale .vrs. The State of Maharashtra and others.) in paragraph
no.4, again a similar view has been taken. In paragraph no.7,
finding of the Scrutiny Committee that petitioner could not produce
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a document mentioning Caste as Thakur Scheduled Tribe, is found
erroneous, with conclusion that before the Scrutiny Tribe Order,
1950 in preconstitution documents word “Scheduled Tribe” could
not have figured. In paragraph no.5 there is reference to area
restrictions. Again this judgment does not hold that Thakur Upper
Caste is not in existence.
32. In Writ Petition No. 9356/2014, decided at Bombay on
23.04.2015 in paragraph no.8, the similar approach of the Scrutiny
Committee is criticized. Facts there show that the Division Bench
finds that each matter needed individual consideration, but, in cases
where relatives have validity, and validity is granted because of
orders of the High Court or the Hon'ble Supreme Court, the Scrutiny
Committee has limited scope to undertake verification. This
judgment relied upon by the petitioners, therefore, does not support
the contention that mention of Caste as Thakur in a preconstitution
document is decisive and recourse to affinity test is prohibited. On
the contrary, observations in paragraph no.8 in said judgment
indirectly militate with this contention. It is to be noted that Special
Leave Petition (Civil) No. 26523/2015, filed against this judgment
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has been dismissed by the Hon'ble Supreme Court on 21.09.2015.
33. Petitioners have also relied upon the judgment delivered
on 12.12.2013 at Bombay in Writ Petition No. 6744/2011, in case of
Sangita Sahebrao Bhalerao .vrs. State of Maharashtra. Perusal of
this judgment, particularly paragraph no.14 shows that old
documents reveal that Caste of ancestors of Sangita was recorded as
Thakur in school records. The research officer had opined that traits,
characteristics, disclosed by her were not of Thakur Scheduled Tribe.
It appears that question whether she belong to Upper Caste Thakur
or not, did not fall for consideration and has not been looked into by
this Division Bench.
34. In judgment in Writ Petition No. 4504/2015, delivered at
Bombay on 14.07.2017, the contention of petitioner Vaishali that
there was no material on record even remotely suggested that she
belongs to Upper strata or a different Caste, has been accepted and it
is concluded that the affinity test cannot be said to be decisive.
Thus, view taken is in the facts and circumstances of the matter.
35. In Writ Petition No. 1553/2017 (Jairam Vishram
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Gangwane .vrs. State of Maharashtra and others) decided at Bombay
on 10.02.2017, it appears that relatives on paternal side of Jairam
already had validity certificates and the Scrutiny Committee had no
material with it to dispute the same.
36. In Writ Petition No.15/2009 (Padmakar Babasaheb vishve
.vrs. State of Maharashtra ) decided at Aurangabad on 16.03.2017, it
appears that real brother of petitioner had a validity dated
31.05.2004. There were also validity certificates ie. validities issued
on 30.03.2015 and 06.04.2015 to other relatives. It is in this
backdrop that the order of the Committee invalidating the Caste
claim of petitioner Padmakar dated 03.10.2008 was quashed and set
aside.
37. In 2003 (3) Mh.L.J. 513 (Mana Adim Jamat Mandal
.vrs. State of Maharashtra and others) , Division Bench of this
Court has looked into the judgment of Hon'ble Supreme Court in
case of Palghat Jilla Thandan Samudaya Samrakshna Samiti .vrs.
State of Kerala ((1994) 1 SCC 359, in paragraph no.23, it is found
that no action to modify the plain effect of Schedule Caste order,
except as contemplated by Article 341, was valid. The Division
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Bench further observes that it was not open to the Committee or the
Court to make any addition or subtraction in the Presidential Order.
The Division Bench in paragraph no.24 of the judgment thereafter
looks into entry no.18 of the Scheduled Tribe Order, 1950 and
concludes that as Mana community finds inclusion therein, it was not
possible for the Committee or the State Government or the Court to
deny benefit to members belonging to Mana community. Action of
State Government in declaring Mana community as Special
Backward Class was therefore, quashed and set aside. The Division
Bench also finds that if there be a separate community by name
Mana in Vidarbha Region, which does not possess any affinity with
Gond Tribe, that community would also fall in entry no.18. The
inquiry to determine whether a section of Manas' was excluded from
the benefit of Scheduled Tribe Order was therefore, held not open.
In paragraph no.25, reference is made to earlier judgments in case of
Pandurang Chavan .vrs. State of Maharashtra, which quashed
government action declaring their community as Other Backward
Class. While mentioning the judgment of Hon'ble Supreme Court in
case of Pankaj Kumar Shah .vrs. Sub Divisional Officer, Islampur
((1998) 8 SCC 264) , the limited inquiry or evidence admissible is
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taken note of. It is found that in paragraph no.6 of its judgment, the
Hon'ble Supreme Court found that evidence was admissible only to
find out whether particular Caste claimed by to be Scheduled Caste
or Tribe was included in the Presidential Notification or not. The
Hon'ble Supreme Court held that Court is devoid of power to include
or order to exclude from or substitute or declare synonyms to be
Scheduled Caste or Scheduled Tribe. The action of State
Government in declaring Thakur to be other backward class was
therefore, found unsustainable in Pandurang Chavan (supra). Again
this Division Bench was not required to consider whether Thakur
Caste existed independent of Thakur Tribe and it has different status
in the society.
38. Division Bench of this Court in 2004 [2] Mh.L.J. 578
(Narendra Dhudku Thakur .vrs. Scheduled Tribe Certificate
Scrutiny Committee, Pune and others.) , has looked into the
finding of the Scrutiny Committee that the petitioner Narendra
belonged to Thakur Caste and was a non tribal. In paragraph no.4,
the Division Bench reproduces consideration in Pandurang Chavans
case (supra), and thereafter in paragraph no.5, mentions judgment
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of Hon'ble Supreme Court in case of Palghat Jilla Thandan
Samudaya (supra). Division Bench has concluded that no action to
modify the Scheduled Tribe Order 1950 was possible and the
Committee could not have distinguished between Thakur Caste and
Thakur Tribe. Thus, this appears to be the only judgment which
hold that no distinction can be made between Thakur Caste and
Thakur Tribe. However, again attention of this Division Bench was
not invited to the difference between a Caste and a Tribe.
39. In Writ Petition No. 1661/2009 ( Praful Anirudha
Ingle .vrs. State of Maharashtra and others ), decided at Nagpur on
10.10.2013, the Division Bench has found that there was validity in
the family and it was not disputed by the Scrutiny Committee. In the
backdrop of this validity, judgment of Hon'ble Supreme Court in
Caste of Anand .vrs. Committee for Scrutiny (supra), and Division
Bench judgment in case of Apporva Vinay Nichale (supra), have been
applied. One of us (Z.A. Haq, J), is party to this judgment. Again
this judgment does not consider the existence of Thakur Upper
Caste.
40. On same date (10.10.2013), same Bench has delivered
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judgment in Writ Petition No. 2750/2009 ( Sou Sheela Sudhakar
Gathe .vrs. The Scheduled Tribe Caste Certificate Scrutiny
Committee and others ). There again a validity was available.
41. Very same Bench has on 27.09.2013, decided Writ
Petition No. 4869/2012 ( Gopal Mahadeorao Bayaskar .vrs. The
Scheduled Tribe Caste Certificate Scrutiny Committee and
others ). In paragraph no.7, the assertions of Scrutiny Committee
that entry Thakur is found in Caste certificates of others who are not
Scheduled Tribes, has not been considered and in paragraph no.8,
judgment of Hon'ble Supreme Court in case of Anand .vrs.
Committee for Scrutiny (supra), has been relied upon. Again this
judgment does not consider existence of Thakur Upper Caste.
42. Judgment delivered at Bombay on 08.03.2013 in Writ
Petition No. 11241/2012 ( Ravindra Pralhadrao Khare .vrs. State
of Maharashtra and others ) in paragraph no.4, the Division Bench
finds that in 194748 entry as “Thakur Tribe” could not have been
made. Thereafter there is reference to judgment of Hon'ble Supreme
Court in case of Anand .vrs. Committee for Scrutiny (supra). This
judgment therefore, does not deal with Thakur Upper Caste.
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43. Division Bench at Aurangabad in judgment reported at
2016 [1] Mh.L.J. 94 (Chandrashekhar Gaikwad .vrs. State of
Maharashtra and others) , in paragraph no.12 records that pre
constitution documents mentioning Caste deserve more credence
and affinity test could not have been used as a decisive test.
44. In 2016 [5] Mh.L.J. 907 (Sonak Bakade .vrs. Joint
Commissioner and Vice Chairman and others), failure in affinity
test is held not decisive. The matter was in relation to Halbi
Scheduled Tribe and question of present nature did not arise for
consideration there.
45. Judgment of Hon'ble Supreme Court in Civil Appeal
No.12336/2011 dated 08.03.2017 (Jaywant Dilip Pawar .vrs. State
of Maharashtra and others), shows that the Scrutiny Committee
could not have rejected Caste claim of Jaywant on the ground that
he or his relatives were not residing in the area mentioned in the
Presidential Order. The Hon'ble Supreme Court looks into impact of
removal of area restrictions in 1976 and finds the High Court in
error in applying area restrictions even thereafter.
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46. Recent judgment of Division Bench of this Court at
Nagpur in case of Narendra Balaji Ghodmare .vrs. Scheduled
Tribe Certificate Scrutiny Committee, Gadchiroli and others
(2018 (2) Mh.L.J. 766) , shows importance of Preindependence
documents. There all documents reveal that the petitioner and his
forefathers belonged to Mana Scheduled Tribe, as observed by the
Division Bench in paragraph no.21 of the said judgment. The
finding of the Committee that the documents revealed Caste Mana
and not Mana Scheduled Tribe is not accepted. In paragraph no.19,
the Division Bench observes that prior to 1950, the concept of
Scheduled Tribe was not in existence, and therefore, the Tribe or
Caste were recorded under heading “Caste”. Division Bench has also
observed that “while entering name, the distinction between Caste
and Tribe is ignored.” This Division Bench therefore, takes note of
fact that Caste and Tribe are different.
47. We at this stage may point out that framers of
Constitution have in Article 341 and 342 of the Constitution of India
have also taken note of this distinction between Caste and a Tribe.
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Certain Caste have been recognized as Scheduled Caste, while
certain Tribes have been recognized as Scheduled Tribe. This
treatment shows that difference between a Caste and a Tribe already
existing, has been taken note of by the Constitution. The distinction
has not been made for the first time while issuing the Constitution,
Scheduled Caste or Constitution Scheduled Tribe Order, 1950.
48. Division Bench of this Court at Bombay in Writ Petition
No. 9026/2010 ( Ku. Sampada P. Wankhede .vrs. State of
Maharashtra and others ) on 24.01.2011 noticed this difference in
caste Thakur and scheduled tribe Thakur in paragraph no.3. Said
Division Bench noted finding of the Scrutiny Committee that the
petitioner belonged to Thakur Scheduled Tribe. High Court has held
that as petitioner belonged to Thakur Scheduled Tribe there was no
justification for holding the affinity test. This Division Bench thus
finds that had Committee found that the petitioner belonged to
Thakur Caste or had any reason to doubt it, then only the Committee
could have inquired into affinity to find out whether she belonged
to Thakur Scheduled Tribe. This judgment, therefore, indirectly
recognizes existence of Thakur Caste, which is distinct from or
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independent of Thakur Scheduled Tribe. This also does not rule out
use of affinity test in appropriate cases.
49. Petitioners have relied upon judgment of Hon'ble
Supreme Court dated 23.08.2011 in Civil Appeal No. 7230/2011
( Amruta Vijay More .vrs. State of Maharashtra and others ). The
Hon'ble Supreme Court has allowed appeal of Amruta and her Caste
claim as belonging to Thakur Scheduled Tribe has been accepted. It
appears that because of validities in the family, use of affinity test
to discard those validities in not countenanced by the Hon'ble
Supreme Court.
50. In 2016 [4] All M.R. 404 (Dattatraya Shriram Ingle
.vrs. The Committee for Scrutiny and Verification of Tribal
Claims and another), Division Bench of this Court at Nagpur found
that when Caste with name Thakur is available, holding of affinity
test to determine whether the candidate belongs to Thakur
Scheduled Tribe is warranted and mere Scrutiny of all documents
will never be sufficient to determine the real status.
51. Full Bench judgment of this High Court reported at 2009
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[3] Mh.L.J. 995 (Shilpa Vishnu Thakur .vrs. State of Maharashtra
and others) , looked into a situation which arises when a Caste and a
Tribe have same name. Division Bench judgment in case of
Maharahtra Adivasi Thakur Jamat Seva Mandal and others .vrs. State
of Maharashtra and others (1986 Mh.L.J. 1021), has been looked
into along with other judgments. We are referring to this judgment
at some length below. Division Bench judgment in case of Murlidhar
Ramkrishna Gathe .vrs. State of Maharahtra and others (2007 (3)
Mh.L.J. 308) is also looked into. Division Bench in Murlidhar Gathe
[supra] observed that when word or surname 'Thakur” is shared by
both forward and backward communities, burden of proving that he
belongs to Scheduled Tribe heavily lies on a person claiming it.
Examination of traits, characteristics, is therefore, essential. In
paragraph no.36, a contrary view taken by the other Division Bench
in case of Raviprakash Babusingh Parmar .vrs. State of Maharashtra
and others (2004 [1] Mh.L.J. 177), is also taken note of. Full Bench
finds that the Hon'ble Supreme Court has overruled it in appeal filed
by State of Maharashtra by a decision reported at (2007) 1 SCC 80.
52. Judgment in case of Pandurang Raghunath Chavan
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(supra), is also considered and this Full Bench points out that it does
not deal with standards to be applied in determining whether an
individual has established his status as Scheduled Tribe. Full Bench
also holds that Division Bench does not preclude an inquiry into
question, as to whether a person who stakes a claim to belong to a
Scheduled Tribe, does in fact belong to that Tribe or not.
53. This Full Bench also considers the judgment of Division
Bench in case of Chandrakant Bajirao Shinde .vrs. State of
Maharashtra and others (2003 [2] Mh.L.J. 471) . That Division
Bench had held that once it was found that the petitioner belongs to
Caste Thakur, it was not open for the Scrutiny Committee to find out
whether he belongs to Thakur Scheduled Tribe. Full Bench points
out that this judgment in case of Chandrakant [supra], is prior to
judgment of the Hon'ble Supreme Court in case of Raviprakash
Parmar [supra] and Division Bench judgment therefore, cannot be
understood as laying down a principle that the Scrutiny Committee is
debarred from considering whether a person who applies for Caste
certificate is in fact a member of Scheduled Tribe or not. It has
been found that Chandrakant Shinde is impliedly overruled because
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of judgment of Hon'ble Supreme Court in case of Raviprakash
Parmar. Other judgments i.e. Narendra Thakur .vrs. Scheduled
Tribe Certificate Committee (2004 [2] Mh.L.J. 578) , and Arun
Babarao Ingle .vrs. State of Maharashtra (2005 [1] Mh.L.J.
1081) , were overruled by Raviprakash Parmar (supra). Even
Division Bench judgment in case of Pravin Pandurang Ingle decided
on 24.11.2004 is found not laying down a correct law. Even
judgment in case of Amol Nagorao Wakkar .vrs. State of
Maharashtra (2005 [1] Mh.L.J. 798), delivered by the High Court
holding that the Scrutiny Committee could not hold inquiry on the
basis of socio cultural traits and ethnic linkage to find out whether
petitioner belong to Thakur Scheduled Tribe, is found overruled.
54. Full Bench of this Court has recorded its conclusion in
paragraph no.39 of its judgment. It is held that affinity test is an
integral part of determination of the correctness of the claim. It has
found that merely because documents produced by a person reflect
his surname as being synonym with the name of a designated Tribe,
it is not sufficient to establish that he belong to Scheduled Tribe.
55. In Maharashtra Adivasi Thakur Jamat Seva Mandal and
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others Vs. State of Maharashtra through the Secretary to the Tribal
Development Department, Bombay32 and others, (supra), t he
Division Bench of this Court observes in paragraph No. 9, as under :–
“9. From the material placed on record it
appears that there is also a caste known by name,
'Thakure' which is amalgamation of certain sub
caste . The details of this sub caste are given in the
accompaniment to the Government Resolution dated
29th April, 1985, though the list is not exhaustive
and is merely illustrative. From Entry No.44 in the II
Schedule the Scheduled Caste s and Scheduled Tribes
Order (Amendment) Act 1976, the Tribes known as
Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur
and Ma Thakar are notified as Scheduled Tribes. In
the list notified by the Maharashtra Government for
other Backward Class. Therefore, from the material
placed on record it appears that there is a distinct
caste carrying same nomenclature. Hence it is
necessary to find out in each case as to whether the
claimant belongs to Scheduled Tribe or the Caste
carrying the same name. By indirect method or
obliquely a caste which is not included in the
Schedule relating to Scheduled Tribe, cannot be
equated with or conferred the status of Scheduled
Tribes. It is experienced that benefits are snatched
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away by most vocal classes, and thus keeping the
weaker among the weak always weak. This not only
robs them of their share in benefits but creates
further inequalities amongst the unequals. Therefore
an enquiry in each case is a must and this is
precisely what is contemplated by the various
Government Resolutions. It is true, that only because
in the various certificates produced by the claimants
he is described as 'HinduThakur' it does not mean
that he necessarily belongs to Thakur Caste and not
to the Thakur Scheduled Tribe. His or her place of
residence is also not a decisive factor. Though it was
the case of the State Government in Kum. Sunita's
case that the tribals cannot be Hindus, the said
stand is rightly given up before us.”
56. We find that this Full Bench judgment shows that a Caste by
name Thakur exits independent of Thakur Scheduled Tribe and after
a dispute of present nature arises, legitimately affinity test can be
resorted to. Petitioners state that this Full Bench judgment is stayed
by the Hon'ble Apex Court. They claim that it therefore has no
binding effect. However, they have not cited any precedent in
support. We find from Shree Chamundi Mopeds Ltd. v. Church of
South India Trust Association, Madras , a stay by the Supreme Court
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does not mean that such a law laid down in said judgment ceases to
apply. This is also seen in (2007) 3 CHN 178 Piyush Kanti
Chowdhry vs. State Alka Gupta vs Medical Council Of India And
Anr on 5 May, 2014. Similarly in W.P.(C) 889/2013 and CM
APPL. 1689/2013 on 5/5/2014 , the learned Single Judge of the
Delhi High Court has reached same conclusion. To comprehend the
impact of interim order staying the operation of the impugned
order, distinction between quashing of an order and stay of its
operation needs to be kept in mind. Quashing results in the
restoration of the position on the date of the passing of said order.
The stay of its operation only does not lead to such a result. It only
means that said order can not operate from the date of grant of the
stay. It does not mean that the impugned order is wiped out.
Kolkata and Delhi High Courts therefore, find that the effect of the
order of stay in a pending appeal before the Hon'ble Apex Court,
does not amount to 'any declaration of law' but is only binding upon
the parties to the said proceedings and at the same time, such
interim order does not destroy the binding effect of the judgment of
the High Court as a precedent because while granting the interim
order, the Hon'ble Apex Court had no occasion to lay down any
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proposition of law inconsistent with the one declared by the High
Court which is impugned. When the Constitution of India itself treats
Castes and Tribes separately, We need not delve more into this
submission of the Petitioners.
57. In (1994) 6 SCC 241 (Kumari Madhuri Patil and
another .vrs. Addl. Commissioner, Tribal Development and
others) , the Hon'ble Supreme Court has in paragraph no. 13[5] and
13[6] laid down a principle which shows relevance of affinity test in
case of Scheduled Tribes. In Anand .vrs. Committee for Scrutiny
(supra), the Hon'ble Supreme Court does not rule out or prohibit use
of affinity test. Consideration by the Hon'ble Supreme Court reveals
need of adopting a balanced approach. In cases of present nature,
where a Caste and a Tribe has same name, the mere mention of a
Caste in old documents cannot be understood as indicating a
reference to a Tribe. Such reference may be to Upper Caste Thakur
or even to a Scheduled Tribe Thakur. In this situation, when a
doubt arises, the Scrutiny Committee is not prohibited from taking
recourse to affinity test. Observations in paragraph no.18 of this
judgment by the Hon'ble Supreme Court cannot be understood to
prevent the Scrutiny Committee from applying the affinity test.
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58. Judgment in Motilal Namdeo Pawar .vrs. Scheduled Tribe
Scrutiny Committee (supra) turns mostly on facts of the matter and
errors by the Scrutiny Committee which are found sufficient to
award validity. In other words, it does not lay down a law applicable
in controversies like present one. Though the School records of
Motilal mentioned the caste as “Hindu Thakur” or Thakur, he was
not fitting in entry 44 of ST Order and could not establish affinity or
linkage with it. Hence on 4.3.1989, the Scrutiny Committee
canceled his caste certificate. The Division Bench mostly points out
faulty consideration of facts by the Committee. The stereotype
format of order is seen as routine thereby indicating mechanical
application of mind. That Committee formulated usual three points.
This Court looks into its findings on documents and notes that the
Committee by relying on para 8 in judgment of the High Court in
WP 1953 of 2007 ( Dipika Subhash More vs. State ) concludes that
Thakurs exist in uppercastes like Kshatriya,Rajput,Sindhi,Maratha,
Brahmins etc. Said Scrutiny Committee therefore found recourse to
affinity crucial. Committee also referred to WP 2791 of 2011 where
the Aurangabad Bench observed similarly. Validity dated 28.8.2000
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to relative Sunildatta Pawar was discarded by it as relationship was
not proved. Family Tree filed earlier did not mention said validity
holder as relation and validity holder did not come forward to vouch
for relationship. Motilal himself filed an affidavit of relationship later
on. Sunildatta's validity was also found by Committee to be based
on law laid down by the High Court following the Hon'ble Apex
Court judgment in Palghat Jilla Thandan Samudhaya (supra).
Committee noted that the Hon'ble Apex Court in Sunil Muralidhar
Thakur found the view of High Court incorrect. Committee also
relied upon the cases in which High Court upheld its exercise of
invalidation applying the affinity. While looking into ethnic linkage,
the Committee found that Motilal was not resident of the area
forming ordinary dwelling place of Thakur schedule tribe. With
reference to Area restriction removal in 1976, that Scrutiny
Committee held proof of migration out of “restricted area” essential.
Further consideration by the Division Bench shows how the
Committee mechanically applied affinity test also again falling back
on area restriction. The Division Bench in paragraph No. 7 finds the
approach of the Committee subjective. The reasoning and line
adopted is identical as in earlier as seen by the High Court in earlier
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matters. Expectation of the Committee to have a “thakur schedule
tribe” instead of “thakur” entry is also found unsustainable. This
Court explains that entry 44 is not “thakur, schedule tribe”.
Expectation of Committee to have thakur schedule tribe entry in pre
constitutional documents is found unacceptable. The Division Bench
concludes that said Scrutiny committee rejected preconstitutional
documents on illusory grounds.
59. This Court in Motilal's case, in the light of these findings
relies upon the judgment of the Hon'ble Apex Court in Anand vs,
Committee of Scrutiny (supra) to gather its scope, content and notes
that affinity is not a litmus test. The observations in paragraph 11 of
its judgment by the Division Bench show that in facts before it, the
affinity test could not have been used as sole criterion to invalidate
the claim. In subsequent subparagraphs the reason given by the
Committee to arrive at a negative finding on the affinity test is found
shocking.
In paragraph 12, the approach of the Committee in
general in such cases is found objectionable. In next paragraph,
faulty use of area restriction despite its removal in 1976 finds
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consideration in the backdrop of Full Bench Judgment in Shilpa
Vishnu Thakur vs. State of Maharashtra (supra). Residence within
such area can be used as one of the factors in favour of the claimant.
In paragraph 19, this judgment holds finding of the Committee that
petitioner Motilal could not prove relationship with validity holder
Sunildatta, incorrect. This Court therefore draws support from the
Full Bench view in Shilpa Thakur (supra) though said judgment is
stayed by the Hon'ble Apex Court. This appreciation by the Division
Bench and its comments briefly noted supra show that it is mainly
the impugned order dated 22.11.2013 of that Scrutiny Committee
and defects already criticized by the High Court found repeated
therein, that made it come down rather heavily on the mode and
manner of the functioning of the Committee. The findings and
observations are therefore in specific facts of the case of Motilal
Pawar where there existed a validity and it was ignored arbitrarily.
This Division Bench takes note of Full Bench judgment in case of
Shipa Thakur (supra), availability of Thakur in uppercastes but does
not hold that such uppercaste Thakur does not exist. The Division
Bench also does not rule out in appropriate cases, the use of affinity
test. It also does not criticize use thereof. We find that the Division
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Bench at Aurangabad has on 4.5.2018 while deciding the case of
Monika (supra) correctly appreciated and distinguished it.
60. Attempt of the petitioners before us to work out
inconsistency between Motilal (supra) and Monica (supra) is
misconceived and must fail. Use of Supreme Court judgment in case
of Dayaram (supra) to point out judicial discipline will not be
relevant here. In Shilpa Thakur(supra) the Full Bench in paragraph
38 also points out that an instructive article on the subject, entitled
"PseudoTribalization: An Anthropological Perspective", written by
Dr. Robin D. Tribhuwan, an Anthropologist associated with the
Tribal Research and Training Institute at Pune. The article by Dr.
Tribhuwan refers to similarities of nomenclatures between tribal and
nontribalcommunities. This is evident from the following table
looked into by the Full Bench:
Tribal communities NonTribal communities
1. Mahadeo Koli, Tokre Koli, 1. Koli (including Son Koli,
Malhar Koli Suryawanshi Koli, Vaiti Koli
etc.);
2. Dhanwar 2. Dhangar
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3. Thakur/Thakar 3. Thakur (including Bhat,
kaThakur/ KaThakar Brahmabhat, Thakur,
MaThakur/Ma Thakar Kshatriya Thakur, Rajput
Thakur, Sindhi Thakur,
Maratha Thakur, Pardeshi
Thakur);
4. Gond Gowari 5. Gowari
5. Mannerwarlu 6. Munnurwar/Mannerwar/
Mannawar
6. Halba/Halbi 7. Koshti/Halba Koshti
This Full Bench also mentions monographs of Prof.
Mutatkar and Dr. Tribhuwan emphasizing that there has been a
rapid rise in the growth rate of the Scheduled Tribes between 1971
and 2001 which is not reflective of a natural biological growth but
an attempt by communities which do not genuinely have an affinity
to Scheduled Tribes towards pseudotribalization. These
contributions in the written work of experts on the subject only go to
emphasize the dangers of the benefits granted to the Scheduled
Tribes being frittered away at their expense if unverified claims of
impostors are not nipped in the bud.
61. The observation of Scrutiny Committees before us in the
impugned orders that reference to Thakur caste in preconstitutional
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documents can not be construed as reference to Thakur schedule
tribe, is therefore neither erroneous nor perverse here. None of the
petitioners have urged that there are no such nonTribal Thakurs or
pseudo thakurs. We find that whenever the Scrutiny Committees
associate the word schedule tribe with preconstitution documents, it
is only highlighting the difference between the concept of “Caste”
and “Tribe”. Historically, Tribes were restricted to a specific area and
hence evidence of ancestors residing in that area may corroborate
the claim for grant of validity. However absence of such evidence is
not decisive at all.
62. Full Bench of this Court in 2008 (8) LJSOFT 23 = 2008
(4) Mah.L.J. 843Emkay Exports and anr. Vs. Madhusudan
Shrikrishna has explained in paragraphs 11, 25 and 12 to 16 the Law
on the point of precedent and ratio decidendi. Relevant portions
extracted therefrom read :
"(PARA 11:) Even for a precedent to be binding, it
cannot be without judicial decision or arguments
that are of no moment. To be a good precedent, it
has to be an adjudged case or decision of a court of
competent jurisdiction considered as furnishing an
example or authority for an identical or similar
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case or a similar question of law afterward
arising. It is the ratio understood in its correct
perspective that is made applicable to a subsequent
case on the strength of a binding precedent."
"(PARA 25:) As is apparent from the discussions
of the judgments, the Division Bench judgment of
this court in the case of Bombay Enamel Works
(supra) was not cited before the Bench hearing
M/s. D. Shanalal's case (supra). The judgment of
equibench on the same principle with similar
facts, if is a precedent applicable in law , goes
unnoticed in a subsequent judgment, the
subsequent judgment may not be termed as a good
law in face of the doctrine of stare decisis. While
interpreting the judgment, the court has to pin
point its attention to the ratio of the judgment.
Keeping in view the principle of stare decisis a view
which has been holding the fort need not be
disturbed only because another view would be
possible. The judgments which have held the field
for a fairly long time ought not to be disturbed
unless there is a prepondering necessity dictated by
the demands of justice to overturn them. Taking of
a different view on a mere thought that it would
have been proper that a different view was taken is
not healthy tradition to the law of precedents. The
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doctrine of stare decisis is based upon rule of
convenience, expectancy and public policy. It is to
be adhered to even if it is not imperative to do so.
Applicability of law must be determined in respect
of each case to avoid error of fact and law .
Controversies must be determined in each case by
use of discretion by the court. It may be
appropriate not to perpetuate errors but it should
also be ensured that consistency of law is not done
away with by such discretion. Reference can be
made in the cases of (i) Mishri Lal (dead) by Lrs.
v. Dhirendra Nath (dead) by Lrs. and ors., JT
1999 (2) SC 586, (ii) Milkfood Ltd. v. GMC Ice
Cream (P) Ltd., 2004 (7) SCC 288, and (iii) S.
Brahmanand and others v. K.R. Muthugopal
(dead) and others, 2005 (12) SCC 764."
"(PARA 12:) In order to apply a judgment as a
precedent, the relevant law s and earlier judgments
should be brought to the notice of the court and
they should be correctly applied. Mere observations
in a previous judgment may not be binding on a
subsequent Bench if they are not truly applicable
to the facts and controversies in a subsequent case
as per settled principle of "ratio decidendi". The
rule of precedent, thus, places an obligation upon
the Bench considering such judgments that the
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Court should discuss the facts and the law of both
the cases and then come to a conclusion whether
the principle enunciated in the previous judgment
is actually applicable on facts and law to the
subsequent case. This principle would equally
apply when the Courts have to consider which of
the two views expressed by earlier equi or other
Benches is applicable to the subsequent case. The
rule of precedent is not without exceptions. It has
its own limitations. Besides that, the law changes
with the changed circumstances and even good
law may be rendered ineffective or
unconstitutional because of passage of time, as
reflected in the principle "cessante ratione cessat
ipsa lex". Adopting this Maxim, the Supreme Court
in the case of State of Punjab and another v.
Devans Modern Breweries Ltd. and another, 2004
(11) SCC 26, stated that, with changes that are
bound to occur in an evolving society, the judiciary
must also keep abreast of these changes in order
that the law is considered to be good law . This is
extremely pertinent especially in the current era of
globalisation where the entire philosophy of
society, on the economic front, is undergoing vast
changes. Besides this well accepted precept, there
are exceptions to the rule of precedent. There are
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judiciously accepted exceptions to the rule of
precedent and they are decisions per incuriam,
subsilentio and stare decisis. These principles
explain when and where a precedent, which is
otherwise a good law , necessarily need not be
accepted in subsequent judgments if it fully
satisfies essentials of these exceptions."
"(PARA 13:) In the case of Commissioner of
Customs (Fort) vs. Toyota Kirloskar Motor (P)
Ltd., 2007 (5) SCC 371, the Supreme Court stated
the law relating to precedents and held that a
decision, as is well known, is an authority for
what it decides and not what can logically be
deduced therefrom. The ratio of a decision must be
culled out from the facts involved in a given case
and need not be an authority in generality without
reference to the reasons, discussions and facts of
the case."
"(PARA 14:) A Bench of two Judges cannot over
turn or disagree with an equiBench, if the
decision is otherwise a good precedent, their
limited option would be to refer the matter to a
larger Bench. Such opinion of reference even
normally should be supported by reasons and a
mechanical process need to be avoided, unless the
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decision of a coordinate Bench ceases to be good
law due to any subsequent event or change in law .
It is settled principle that it is not every thing said
by a Judge, while giving judgment, that constitutes
a precedent. The only thing in a Judge's decision
which bind parties is the principle upon which the
case is decided and for this reason it is important
to analyse the decision and isolate "ratio
decidendi" from it. Its three essential features are
(i) findings of material facts, direct and
inferential. An inferential finding of facts is the
inference which the Judge draws from the direct or
perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed
by the facts; and (iii) judgment based on the
combined effect of the above."
"(PARA 15:) Furthermore, ratio decidendi of a
judgment has to be found out only on reading the
entire judgment. The ratio of the judgment is what
is set out in the judgment itself. Answer to the
question necessarily would have to be read in the
context what is set out in the judgment and not in
isolation. In case of any doubt as regards any
observations, reasons or principles, the other part
of the judgment must be looked into. By reading a
line here and there from the judgment, one cannot
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find out the entire ratio decidendi of the judgment.
The reasoning could be deciphered upon reading
the judgment in its entirety and then applying
these principles to the subsequent cases. (Reference
: (i) Union of India vs. Godfrey Philips India Ltd.,
AIR 1996 SC 806, (ii) Union of India vs.
Dhanwanti Devi, 1996 (6) SCC 44, (iii) State of
Tripura vs. Tripura Bar Association, AIR 1999 SC
1494 and (iv) Islamic Academy of Education vs.
State of Karnataka, 2003 (6) SCC 697)."
63. When a judgment acts or operates as a precedent, is
considered by the Larger Bench of this Court in M/s. Emkay
Exports .vrs. Madhusudan Shrikrishna, (supra). Observations supra
in paragraph nos. 12 to 14 therein reveal that when after due
consideration of legal provisions and a binding precedent holding
the field, a reasoned view one way or the other is reached, such a
view and reasons only can operate as binding precedent.
64. In this background, when the Division Bench judgment
delivered at Aurangabad in case of Monika Thakur (supra), on
04.05.2018, is looked into, it considers the facts as also precedence
available in the field. In paragraph nos.3 and 10 there is a reference
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to Full Bench judgment in case of Shilpa Vishnu Thakur .vrs. State of
Maharashtra (supra), and thereafter in paragraph no.12 onwards
other judgments have been looked into. In paragraph no.14, there
is a categorical finding that in Maharashtra State “Thakur” is “Tribe”
as well as “Caste”. In paragraph no.18, judgment of Hon'ble
Supreme Court in Raviprakash Parmar (supra), has been looked into.
In paragraph no.21, judgment of Hon'ble Supreme Court in case of
Pournima Pawar .vrs. State of Maharashtra (AIR 2013 SC 1508) ,
has been looked into. The Scrutiny Committee in case of Pournima
has noted that there was evidence to show that she belonged to
Thakur Caste and Hon'ble Supreme Court accepted and upheld the
said finding of Scrutiny Committee. In paragraph no.22, judgment
of Hon'ble Supreme Court in case of Anand .vrs. Committee for
Scrutiny (supra), is appreciated and in paragraph no.23, it is
mentioned that when the Scrutiny Committee is not satisfied with
documentary evidence, it can conduct vigilance inquiry and also
apply affinity test. In paragraph no.24, there is a conclusion that the
petitioner has to prove that he belongs to a Tribe shown as
Scheduled Tribe, and it is permissible to consider whether he is tribal
or nontribal. In paragraph no.26, the Division Bench finds that
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Caste is inherited from father. In paragraph no.27, there is reference
to judgment of Hon'ble Supreme Court in case of Raju Ramsingh
Vasave .vrs. Mahesh Deorao Bhivapurkar ((2009) 1 Mh.L.J. 1) to
take note that principles of resjudicata do not apply. Judgment in
case of Pournima Pawar (supra), is again reiterated for this purpose.
Judgment in case of Motilal Namdeo Pawar .vrs. Scheduled Tribe
Scrutiny Committee (supra), is looked into in paragraph no.29, and
it is found that there the Tribal Validity Certificate was issued in
favour of paternal relative. The Division Bench goes through
various other judgments and in paragraph no.35, 4, validity
certificates issued in favour of siblings of petitioner are looked into.
It is found that same were without satisfaction of the Scrutiny
Committee and hence, the Committee had no option but, to consider
whether the petitioner belongs to non tribal group or not. Its
observations in paragraph no.35 are as under :
“35. Applying these principles, we find that, in
the present case, four validity certificate issued in
favour of four siblings of the petitioners are issued
without satisfaction of the Scrutiny Committee that
the claimants therein belong to Scheduled Tribe.
The Vigilance Enquiry was conducted. There is
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reference that, the claims of the petitioners were not
supported by the affinity test. In fact, the Scrutiny
Committee had rejected the claim of Yogita and
Meghana but this Court had remanded the matter
holding that the Committee had no option to
consider whether the petitioners belong to nontribal
group or not. Therefore, the Committee without
satisfaction of mind issued validity certificates. Same
is the case with regard to certificate issued in favour
of Ganesh. The order hardly runs a page, still it is
noted that the surnames origin, trait, characteristic,
traditions of the petitioner were not associated with
Thakur Scheduled Tribe. The ethnic linkage towards
Thakur Scheduled Tribe was not established. Still in
view of the decision of this Court, the Scrutiny
Committee had no alternative but to hold the
petitioner as belonging to Thakur – Scheduled Tribe.
The order in favour of Vandana is similar to the
order in favour of Ganesh. As held in Raju Vasave's
case, the High Court decisions were rendered without
hearing the benefit of the decision of the Supreme
Court. We find that, these validity certificates will
be of no assistance to the petitioners as there was no
satisfaction of the Scrutiny Committee members and
as those were conducted without following the due
procedure. There was no vigilance. The affinity test
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and home enquiry did not tally with the traits,
anthropological linkages of Scheduled Tribe Thakur.”
65. This judgment in case of Monika Thakur at Aurangabad
dated 04.05.2018 (supra), therefore, appears to be laying down a
law on the point, in terms of Full Bench judgment of this Court in
case of M/s. Emkay Traders (supra). XXXX There are various theories
of CASTE system originated in India. Those are Traditional Theory,
Racial Theory, Political Theory, Occupational Theory, Evolution
Theory. We need not comment on this facet at all but then it
demonstrates that in an attempt to discipline the civil society, the
fractions were introduced by some external agency. It therefore
prevailed where the disciplining was possible. In case of Tribes who
leaved away in Jungles and difficult areas, said caste system had no
relevance. On internet learned articles and essays are available but
for us the distinction made by the Constitution amongst the
Scheduled Castes and Scheduled Tribes is itself more than sufficient.
66. This brings us to the consideration of adherence to
discipline and binding precedents. The Hon'ble Supreme Court in
case of Official Liquidator (supra), has explained and highlighted
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need and importance thereof. Petitioners have rightly invited our
attention to observations in paragraph nos. 75, 78 and 90 of the said
judgment. The present issue cannot be decided without considering
those observations.
67. We find that though in Writ Petition No. 564/2009, Shri
R.S. Parsodkar, learned Counsel appearing for petitioner has
contended that the order was without giving petitioner necessary
opportunity, when petitioner was unwell, the impugned order shows
that on 21.02.2008, petitioner was asked to remain present before
the Scrutiny Committee on 13.03.2008. She sought adjournment
with medical certificate for a period from 12.03.2008 to 15.03.2008.
The Committee has taken note of the fact that the claim was
pending since 2005, and in Writ Petition No.188/2006, Committee
was asked to decide the same within a period of three months. The
employer also was pressing for validity and petitioner was also
permitted to appear through an Advocate. The Committee has
looked into all 22 documents produced by her, and it also records
that the information regarding traits and characteristics of Thakur,
Scheduled Tribe were given by the petitioner only on the basis of
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bookish knowledge. The Committee has while answering the issue
no.2 found that surnames given by per are found in Thakur Caste in
Buldhana District, and are not found in Thakur Scheduled Tribe.
This finding of the Committee is not shown to be perverse. The
observations also does not mean that the Committee has applied
affinity test. Even before this Court, petitioner does not point out
what or whose evidence it wanted to adduce before the Committee
to discharge obligation cast upon it under S.8 of Act no. 23 of 2001.
68. In Writ Petition Nos. 804/2002 and 2054/2002,
petitioners are brothers. The Scrutiny Committee has looked into
the documents and found that it was necessary to find out whether
petitioners belong to Thakur Caste or Thakur Scheduled Tribe. It
has then proceeded to apply affinity test. On the basis of vigilance
cell report and other material, the Committee concludes that
petitioners are not Scheduled Tribe Thakur. These findings are not
shown to be perverse at all. Date of order passed by the Scrutiny
Committee and impugned in Writ Petition No.804/2002 by Sunil
Kumar is 19.11.2001. The Scrutiny Committee has considered the
case of younger brother on 26.04.2004. Application of mind by the
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Scrutiny Committee in said matter is on same lines. In both these
Writ Petitions, Sunil Kumar and Bhalchandra have filed affidavit in
an attempt to bring on record more material. Along with that
affidavit, they have given some old documents urging that their caste
is recorded as Thakur, Scheduled Tribe. It is apparent that prior to
Constitution, Scheduled Tribes Order, 1950, concept of Scheduled
tribe itself was not in existence, mention in old documents,
particularly in document dated 17.04.1919 cannot be construed as
referring to Thakur Scheduled Tribe. The contention of petitioners
only brings on record settled practice of referring to Thakur Tribe as
Thakur schedule tribe to distinguish it from Thakur Caste. Validity
given to one Sheela d/o Sudhakar Gathe and two other relatives are
pressed into service by them , however, relationship with these ladies
is being brought on record for the first time by producing a family
tree in High Court. Reliance on Division Bench judgment of this
Court in Writ Petition No.803/2002, in case of Rajendra Madhukar
Gathe, is also misconceived. There the Division Bench was not
required to ponder over existence of Thakur caste independent of
Thakur Scheduled Tribe.
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69. Shri Anup Gilda, learned Counsel appearing for petitioner
in Writ Petition No. 4875/2004, has only argued the question of law.
Perusal of the impugned order in this petition shows that the
Scrutiny Committee has in paragraph no.17, found that only
mention of caste as Thakur, does not mean that person belongs to
Thakur Scheduled Tribe. It has applied affinity test and concluded
that petitioner does not belong to Scheduled Tribe Thakur. The case
law relied upon by learned counsel is separately considered in this
judgment.
70. Advocate Ms. Rane's argument in Writ Petition
Nos.619/2005, 620/2005 and 6023/2005 are almost on the same
lines as that of Advocate Shri Parsodkar. The Scrutiny Committee in
its order dated 24.12.2004, in Writ Petition No.619/2005 found that
the caste entries which are synonymous or have same nomenclature
as that of Tribes, needed cautious approach, and hence, recourse to
affinity. This observation in paragraph no.6 is not shown to be
erroneous.
71. In order dated 28.12.2004, impugned in Writ Petition
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No.620/2005, similar observations appear again in paragraph no.6.
In Writ Petition No. 6026/2005, impugned order is dated
25.06.2004, and again same observations are repeated in paragraph
no.6 by the Committee.
72. Shri Ahirrao, learned Counsel for petitioner in Writ
Petition No. 3024/2004 and other matters adopted the same line of
arguments. Perusal of the impugned order dated 26.07.2002 in Writ
Petition No. 3024/2004, reveals a consideration of documents in the
name of Digamber Manohar Dahake i.e. petitioner himself, in which
in junior college on 09.07.1990, caste has been recorded as 'Bramha
Bhat Thakur'. The caste certificate issued to him by the Executive
Magistrate is dated 27.02.1991, and this document has not been
explained by the petitioner. The Committee has found that after
applying affinity also the candidate could not be said to be belonging
to Scheduled Tribe Thakur. This consideration by the Scrutiny
Committee is not demonstrated to be perverse.
73. In Writ Petition No. 5718/2004, the Scrutiny Committee
in the impugned order , in paragraph no.5, has found that Thakur's
are found in different caste such as Kshtriya Thakur, Rajput Thakur,
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Vashya Thakur, Pardeshi Thakur and Sindhi Thakur. It is also noted
by the Committee that Thakur is called Balutedar caste such as Gram
Bhat and Bramha Bhat. It is in this backdrop, that the Committee
has looked into the documents, applied affinity test and found that
the petitioner does not belong to Thakur Scheduled Tribe.
74. In Writ Petition No. 2352/2002, in impugned order dated
05.04.2002, after mentioning documents produced by the petitioner,
the Scrutiny Committee has again made similar observations and
pointed out that only on the basis of documents one cannot decide
whether the person mentioned in those documents belong to
Thakur caste or Thakur Tribe i.e. Scheduled tribe.
75. The order impugned in Writ Petition No. 5817/2004 is
dated 30.08.2004, and there in paragraph no.5, again similar
observations have been made by the Committee. It has applied
affinity test and came to the conclusion that the candidate before it
does not belong to Thakur Scheduled Tribe. In view of these
observations of the Committee, reliance upon two validities given to
cousins of petitioner, cannot be said to be decisive.
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76. In Writ Petition No. 3605/2004, the impugned order is
dated 27.01.2004. The Committee has after mentioning documents
produced by the petitioner, has in paragraph nos. 6 and 7 recorded
similar observations. While considering the contentions of candidate
in paragraph no. 15[ii], the Committee has also found that caste of
grandfather Gulabrao Tukaramji Wankhede was recorded as 'Bhat',
th th
when he passed 5 standard. In 7 standard, his caste was found
recorded as Thakur. Because of this finding and use of affinity test,
validities given to relatives on 09.06.2000, 02.06.1999 and
09.06.2000, have been discarded. The Committee finds that those
validities were given on the basis of orders of High Court and at that
juncture concerned validity recepients suppressed the information
which came to its notice in police vigilance inquiry. It is to be noted
that these validities are before coming into force of the Act no.23 of
2001, and hence, cannot be said to be decisive.
77. In Writ Petition No. 4099/2005, Shri Sohoni, learned
counsel has submitted that the vigilance inquiry was carried only
with mother and wife of petitioner. Perusal of the impugned order
dated 21.03.2005, shows that there in paragraph no.6, after making
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similar observations and reference to vigilance enquiry, the
candidate was given opportunity. The vigilance cell could bring on
record entry dated 30.06.1973 in case of petitioner himself, which
mentioned his caste as Rajput. The records are maintained by Smt.
Dhanabai Vidyalaya, Balapur. Contention of petitioner is, therefore,
erroneous.
78. In Writ Petition No. 1494/2004, Shri Saboo, learned
counsel has relied upon the validity given to relative on 24.10.2013.
Impugned order in the matter is dated 25.02.2004. Validity
therefore, is obviously after it, and it is subject to decision of the
Special Leave Petition filed before the Hon'ble Supreme Court.
Petitioner has also produced an affidavit dated 10.08.2017, tracing
out for the first time relationship with validity holder Gopal. Thus,
new evidence is being brought on record. Petitioner does not
mention that while giving validity to Gopal, order dated
25.02.2004, invalidating his caste claim was looked into by the
Committee. The exercise undertaken by the Committee in case of
petitioner Ganesh and its observations are on same lines as
mentioned by us supra, and petitioner has not assailed the same.
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79. In Writ Petition No. 4186/2007, the impugned order of
Scrutiny Committee dated 16.04.2007 shows that after mentioning
documents in paragraph no.4, the Committee mentions findings of
vigilance inquiry. It appears that in Writ Petition No. 2550/2004,
petitioner was permitted to prosecute his studies in D.Ed. Course
and his caste claim was to be decided within a period of 4 months.
The Committee has then framed points for determination.
Paragraph no.1[ii], shows a finding that old documents record
caste as Thakur and not Tribe as Thakur. The Scrutiny Committee
has then applied affinity test and concluded that it was not going
behind the constitutional entry, as there was a caste carrying same
nomenclature. It has relied upon judgment of Division Bench of this
Court reported in case of Maharashtra Adivasi Thakur Jamat Seva
Mandal and others .vrs. State of Maharashtra and others (supra), for
that purpose. Thus, there is conscious consideration and a finding
that as a forward caste by name Thakur only exits, documents
mentioning caste as Thakur cannot be conclusive of claim as
Scheduled Tribe Thakur.
80. In Writ Petition No. 726/2004, the Scrutiny Committee
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has passed an order on 07.02.2004, and consideration therein,
particularly paragraph no.4 shows that the documents mentioning
caste of Sunanda Bhuyar, Dattatraya Bhuyar and Digambar Bhuyar,
as Bhat, were traced out by the police vigilance cell. Petitioner
claimed that these persons are not related to her, but, even in case of
paternal uncle of petitioner, caste is found recorded as Bhat only on
21.10.1935. In this situation, the Committee has after applying
affinity test, recorded a finding that petitioner does not belong to
Thakur Scheduled Tribe. It is to be noted that burden to establish
caste claim is upon the petitioner, and petitioner Ku. Pushpashila
Bhuyar was given full opportunity to substantiate it. She has not
even attempted to demonstrate that the Scrutiny Committee did not
accord her necessary opportunity.
81. Arguments of Shri Kalmegh, learned Counsel for
petitioner in Writ Petition No.1553/2004, are not much different.
There a Civil Application No. 2813/2017 has been taken out seeking
leave to produce documents. Effort is to bring on record new
documents and effort is to also to place the same on record.
Petitioner in the proposed amendment submits that he learnt about
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the documents of grand father and great grand father mentioning
caste as Thakur Scheduled Tribe in their school records.
82. Order of the Scrutiny Committee dated 16.12.2003,
impugned therein by the petitioner Ku. Pranita Shankapal, shows
that she has not given those documents to the Scrutiny Committee
and has not disclosed the details of education of grand father or
great grand father. In paragraph no.5, the Scrutiny Committee
points out how word 'Thakur' cannot be determinative and caste
with similar names exists in Kshtriya, Rajput, Vaishya, Pardeshi and
Sindhi communities. It again points out that Thakurs in different
communities is Balutedar caste, such as Grambhat and Bramhabhat.
These findings are not shown to be perverse. Hearing after service
of vigilance cell report, was attended to by father of the petitioner
and there again he did not bother to point out details of education of
his father or of his grand father. In this situation, in the light of the
findings recorded by the Scrutiny Committee, the effort to introduce
alleged old documents at this stage cannot further the case of the
petitioner at all. On the contrary, the same cannot be countenanced.
83. Accordingly, in view of above discussion, we dismiss all
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the Writ Petitions. Rule discharged, however, in the facts and
circumstances of the case, there shall be no order as to cost.
JUDGE JUDGE
84. At this stage, learned Counsel appearing for petitioners
in Writ Petition Nos.3227/2004, 2432/2010, 619/2005, 620/2005,
6026/2006, 726/2004, 2341/2005, 2912/2004, 4069/2004,
2516/2004, 4714/2004, 447/2002, 957/2002, 1494/2004,
2489/2004, 2595/2004, 2596/2004, 2889/2002, 2890/2002,
2959/2002, 2960/2002, 3121/2002, 3387/2002, 3389/2002, and
4751/2004 seek continuation of interim orders for a further period
of eight weeks as petitioners are in employment.
85. The learned A.G.P. is opposing the request. However, in
the interest of justice, we continue that order for a further period of
eight weeks, and it shall cease to operate automatically thereafter.
JUDGE JUDGE
Rgd.
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