Abhishek Rajendra Thakur And ANR v. State Of Maharashtra Thr. Its Secretary, Tribal Development Department And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE WRIT PETITION NO. 2053 OF 2022 Abhishek Rajendra Thakur and another.

...

Petitioners.

V/s.

State of Maharashtra and others.

...

Respondents.

Mr.R.K.Mendadkar with Komal D. Gaikwad and Sarika Mendadkar for the Petitioner.

Ms.Ashwini A. Purav, AGP for Respondent Nos.1 and 2. SANJAY KASHINATH NANOSKAR CORAM :

NITIN JAMDAR AND M.M. SATHAYE, JJ.

SANJAY KASHINATH NANOSKAR Date: 2024.05.02 13:57:49 +0530 DATE :

23 April 2024.

P.C. :

By this Petition, the Petitioner has challenged invalidation of the caste certificate issued to the Petitioners as belonging to Hindu Thakur Scheduled Tribe by the Respondent - Scrutiny Committee.

2.

The Petitioner applied for and was granted caste certificate as belonging to Hindu Thakur Scheduled Tribe by the Competent Authority. The caste certificate was referred for verification to the Scrutiny Committee. Before the Scrutiny Committee, the Petitioner produced evidence in support of the caste claim. The Scrutiny Committee directed an inquiry to be made by

skn 2 29-WP-2053.2022.doc Vigilance Cell. Report of Vigilance Cell was placed on record. After considering the Vigilance Cell report and material on record the Scrutiny Committee by the impugned order dated 2 February 2021 invalidated the caste.

3.

We have heard learned counsel for the parties. 4.

The Petitioner had submitted documents in support of his caste claim. The Vigilance Cell has placed on record the documents in respect of Petitioner's relatives such as school records before the Scrutiny Committee. The Vigilance Cell produced as many as 16 documents. These documents included school entries regarding Petitioners, Petitioners' father, uncle, aunt, grandfather, great grandfather, grandfather's cousin, great grandfather's cousin. The Scrutiny Committee in the order itself has referred to the documents. The Scrutiny Committee noted that the documents of prior to 1950 have entries of Thakar Bhat, Hindu Thakar, Thakur etc. In respect of Petitioners' father, the entry is Hindu Maratha which is of 1975. The Scrutiny Committee having acknowledged that there are documents prior to 1950 in favour of the Petitioners, has observed that it will not be conclusive and affinity test is important.

5.

Perusal of the impugned order would show that the Scrutiny Committee has placed substantial emphasis on the fact that

skn 3 29-WP-2053.2022.doc the Petitioners have failed to show affinity to the Thakur scheduled tribe. In view of this finding, the documentary evidence which is produced in support of the Petitioners has not been properly appreciated. As to how much emphasis can be given to affinity test while deciding the caste claim in respect of Thakur community had came up for consideration of the Hon'ble Supreme Court in the case of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State of Maharashtra and Ors.1 It is an admitted position that Thakur, Thakar, Ka Thakur, Ka Thakar and Ma Thakur, Ma Thakar are also scheduled tribes and that Thakur is also in the open category.

Therefore, to distinguish between the same, the Scrutiny Committee in the State of Maharashtra, would place substantial reliance in ascertaining whether the candidate has shown affinity to the scheduled tribe and even if the documents produced by the candidate would show entry of Thakur/Thakar, on the basis of affinity test the Scrutiny Committee would negate the claim. The Hon'ble Supreme Court in Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti's decision, after considering the entire conspectus, recorded the conclusion in para 38 as under.

"38. Thus, to conclude, we hold that:

(a) Only when the Scrutiny Committee after holding an enquiry is not satisfied with the material produced by the applicant, the case can be referred to Vigilance Cell. While referring the case to Vigilance Cell, the Scrutiny Committee must record brief reasons for coming to the conclusion that it is not satisfied with the material produced by the applicant. Only after a case is referred to the Vigilance Cell for making enquiry, 2023 SCC Online SC 326

skn 4 29-WP-2053.2022.doc an occasion for the conduct of affinity test will arise. (b) For the reasons which we have recorded, affinity test cannot be conclusive either way. When an affinity test is conducted by the Vigilance Cell, the result of the test along with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee for deciding the caste validity claim; and (c) In short, affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case".

The above conclusion is clear that the affinity test cannot be conclusive either way and it has to be considered along with all other material on record. As regards grounds taken about area restriction are concerned, these grounds are in the context of cultural affinity. 6.

We find that in the present case the reasoning of the Scrutiny Committee is predominantly based on the outcome of the affinity test and in the light thereof, the other material has not been considered in the same rigour, as is expected of the Scrutiny Committee while deciding a caste claim. Therefore, the matter will have to be remanded to the Scrutiny Committee for reconsideration of the caste claim in the light of the law laid down by the Hon'ble Supreme Court as stated above, and after considering the totality of the material on record.

7.

In the result, the impugned order dated 2 February 2021 passed by the Respondent- Scrutiny Committee is quashed and set aside. The caste claims of the Petitioners are restored to the file of the

skn 5 29-WP-2053.2022.doc Scrutiny Committee. The Scrutiny Committee will accordingly issue notice to the Petitioners to remain present on the stipulated date, set a time table and subject to earlier time bound directions and urgent cases, will make endeavour to dispose of caste claims at the earliest. It is open to the Petitioners to apply to the Scrutiny Committee for expeditious disposal of the claim.

8.

Writ Petition is disposed of in the above terms. (M.M. SATHAYE, J.) (NITIN JAMDAR, J.)