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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.V. GANGAPURWALA, S.G. DIGE, JJ.
Saurabh S/o Ashok Nikam – Appellant
Versus
The State of Maharashtra Department of Tribal Development – Respondent
Writ Petition No.241 of 2022
Decided on : 06-01-2022
Presidential Order of Scheduled Tribes (Amendment) Act, 1976 - Scheduled Tribes - Verification - Documentary Evidence - Whether applicant proves his claim with help of documentary evidence - Whether, applicant proves his claim through certificate issued to his close blood relatives - Whether applicant has proved his affinity with community – Held, Issue of proving of petitioner’s claim through validity certificates issued to his close blood relatives, Scrutiny Committee has observed that some of caste validities are obtained by suppressing material facts and producing false information - There are about 33 caste validity certificates issued in family of petitioner - In Court view, some caste validities are given under orders of this Court including real brother of petitioner - Said orders are not reviewed - Other caste validities are issued by concerned Scrutiny Committee by following due procedure. So it ought not to have been brushed aside by the Scrutiny Committee - So far as the issue regarding affinity test, the Scrutiny Committee has observed that petitioner has failed to prove affinity test - Scrutiny Committee while recording negative finding in respect of affinity test has observed that surnames of petitioner’s close blood relatives do not match with “Thakur” community - It is significant to note that 33 caste validities have been issued to the petitioner’s close blood relatives considering all aspects including the surnames. Moreover surname cannot depict any one’s caste, so in Court view observations of Scrutiny Committee that surnames of petitioner’s blood relatives do not establish ‘Thakur” caste, is erroneous - It holds that affinity test may not be regarded as a litmus test for establishing the link of petitioner with a Scheduled Tribe - Affinity test is to be used to corroborate documentary evidence and it is not to be used as sole criteria to reject a claim - In view of above, oldest documentary entries of petitioner’s family are of years - These entries are genuine one - At time of putting entry of ‘Thakur’ in school record ancestors of petitioner were not aware about benefits getting to their next generation, but said caste was recorded in their school record so it has more probative value - Considering these three old entries as well as 33 caste validities of ‘Thakur’ scheduled tribe issued to close blood relatives of petitioner establishes that petitioner belongs to ‘Thakur’ caste, Court is of view that finding of Scrutiny Committee in respect of affinity test is improper and erroneous – Petition allowed.
JUDGMENT :
S.G. Dige, J:
Rule. Rule made returnable forthwith.
With consent of both parties, heard finally at admission stage.
2. By this petition, the petitioner is challenging the impugned decision of the Scheduled Tribes Scrutiny Committee, Aurangabad Division, Aurangabad – respondent no.2 (for short, “the Scrutiny Committee”) dated 15th December, 2021 invalidating the tribe claim of the petitioner as belonging to “Thakur, Scheduled Tribe community.
3. Brief facts of the case are as under :-
The tribe certificate of the petitioner as belonging to Thakur, Scheduled Tribe was referred to respondent no.2 – Scrutiny Committee for verification through the College of petitioner along with the documentary evidence of 1337 Fasli and certificates of validities issued in favour of his real brother – Subham Ashok Nikam, cousin brother – Yeshraj Dilip Nikam and cousin sister – Tanushree Dilip Nikam under the orders passed by this Court in respective Petitions. The Scrutiny Committee had referred the matter for vigilance inquiry. After receiving vigilance cell report, the Scrutiny Committee served copy of the vigilance cell report to the petitioner directing to submit reply to it. Accordingly, the petitioner had filed reply to the vigilance cell report. Considering the documents on record and vigilance cell report, the Scrutiny Committee invalidated the Tribe claim of the petitioner vide the impugned order. Against the said order, this Petition.
4. It is contention of learned counsel Shri Yeramwar for the petitioner that the Scrutiny Committee overlooked documentary evidence since 1337 Fasli showing the social status of the family of the petitioner namely as Thakur, Scheduled Tribe. The Vigilance Cell Officers intentionally did not collect the proper evidence, which shows that the petitioner was belonging to Thakur Scheduled Tribe. The caste validity certificates are issued in favour of the petitioner’s real brother, cousin brother and cousin sister. The Scrutiny Committee has discarded the evidentiary value of these validity certificates. These certificates of validities have been granted by this Court that too after considering all aspects but it was not considered by the Scrutiny Committee. The learned counsel for the petitioner relied upon the judgments in the cases of Anand V. Committee for Scrutiny and Verification of Tribe Claims and others, reported in 2011(6) Mh.L.J. (S.C.) 919, Shubham Ashok Nikam V/s Director of Technical Education, Maharashtra State and others in Writ Petition No.10202 of 2018, decided on 20th July, 2021 and Yashraj S/o Dilip Nikam V/s The State of Maharashtra and another in Writ Petition No.5293/2021, decided on 25th March, 2021.
5. It is the contention of learned Addl. G.P. Mr. Patil that there are contra-entries in the record of the petitioner. The petitioner’s relatives have shown their caste as “Maratha” as well as “Bhat”. There are contra entries and the petitioner failed to prove affinity test. Hence, the order passed by the Scrutiny Committee is legal and valid.
6. We have considered the submissions of both the learned counsel. Perused the record.
7. The Scrutiny Committee has rejected the caste claim of the petitioner on following three grounds :
(ii) Whether, the applicant proves his claim through the certificate issued to his close blood relatives ? – No and
(iii) Whether the applicant has proved his affinity with community – No.
8. Before coming to the legality of the impugned order, we would prefer to mention that, the real brother – Subham Ashok Nikam, cousin brother Yeshraj Dilip Nikam and cousin sister- Tanushree Dilip Nikam are issued with validity certificate of Thakur, Scheduled Tribe under the orders passed by this Court in respective petitions. The documents produced by the petitioner before the Scrutiny Comm
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