Dipalee Shivdas Sonawane@ Dipalee Kishor Thakur v. Scheduled Tribe Certificate Scrutiny Committee Through Its Member Secretary And Others

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD WRIT PETITION NO. 10687 of 2015 Dipalee D/o Shivdas Sonawane @ Dipalee W/o Kishor Thakur, age 28 years occupation service R/o Nand Khurde (Kh.) Taluka Erandol Dist. Jalgaon at present R/o Nashik Taluka & Dist. Nashik.

...Petitioner

Versus

1.

Scheduled Tribes Certificate Scrutiny Committee, Nandurbar Region, Nandurbar through its Member Secretary.

2.

Zilla Parishad, Nashik Dist. Nashik through its Chief Executive Officer 3.

Panchayat Samiti, Niphad Taluka Niphad Dist. Nashik through its Block Development Officer. ...Respondents WITH WRIT PETITION NO. 10689 of 2015 Darshana D/o Pralhad Sonawane, age 26 years occupation service R/o Nand Khurde (Kh) Taluka Erandol Dist. Jalgaon at present R/o Nashik Taluka & Dist. Nashik

...Petitioner

Versus

1.

Scheduled Tribes Certificate Scrutiny Committee, Nandurbar Region, Nandurbar through its Member Secretary.

2.

The District Collector, Nashik Dist. Nashik.

3.

The Tahsildar, Dindori Taluka Dindori Dist. Nashik. ...Respondents

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Mr. M.S. Deshmukh, Advocate for petitioner in both petitions. Mr. S.P. Sonpawale, Asstt. Govt. Pleader for all Respondents C ORAM : PRASANNA B. VARALE AND AVINASH G. GHAROTE, JJ.

Reserved on : 18th September, 2019 Pronounced on : 25th September, 2019 J U D G M E N T (Per -PRASANNA B. VARALE, J. ) 1.

Rule. Rule made returnable forthwith. Heard finally with the consent of parties and taken up for final disposal at admission stage.

2.

By these petitions, the respective petitioners challenge the common order dated 31st August, 2015 of respondent No.1 - Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Region, Nandurbar, rejecting the caste claim of the petitioners.

3.

The petitioners claim to belong to 'Thakur ' Scheduled Tribe, which is notified as a Scheduled Tribe under the Constitution (Scheduled Tribe) Order, 1950 as amended from time to time. The petitioners had been issued the appropriate caste certificates on 27/11/2003 and 15/11/2000, respectively, certifying that they belonged to Thakur tribe, which is recognized

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as a Scheduled Tribe. The petitioners are first cousins by relationship. The following dates being material, are listed as below:

Relating to petitioner in W.P. No. 10687/2015 27/11/2003 The petitioner was issued the 'Thakur' tribe certificate by the competent authority.

While prosecuting studies, concerned Principal of the College at Nashik referred the Tribe certificate of the petitioner for its verification initially to the Scrutiny Committee at Nashik, which came to be transferred to respondent No.1.

02/01/2009 Petitioner got appointment as 'Shikshan Sevak' with respondent No.2, who also submitted the tribe certificate of the petitioner for its verification to respondent No.1.

09/08/2004 & The Vigilance Cell submitted its report dated 05/04/2014 09/08/2004, which was forwarded to the petitioner alongwith show cause notice dated 05/08/2014.

19/04/2014 The petitioner filed her reply to the show cause notice as well as report of the Vigilance Cell. 31/08/2015 The caste claim of the petitioner was rejected by the impugned order by the Caste Scrutiny Committee/respondent No.1 Relating to petitioner in W.P. No. 1068 9 /2015 15/11/2000 The petitioner was issued the 'Thakur' tribe certificate by the competent authority.

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23/11/2001 The Vigilance Cell submitted its report, which as per contention of the petitioner was not forwarded to her alongwith show cause notice, which she obtained under the provisions of the Right to Information Act and consequently the petitioner could not submit her reply to the show cause notice.

28/08/2012 The Collector/respondent No.2 appointed petitioner as a Jr. Clerk from the Scheduled Tribe Category, who is still working with respondent No.3/Tahsildar, Dindori.

31/08/2015 The caste claim of the petitioner was rejected by the impugned order by the Caste Scrutiny Committee/respondent No.1 4.

The Learned Counsel for the petitioner has assailed the impugned order on several grounds. It is contended that the Committee in-spite of having admitted that there were several pre-constitutional documents of blood relatives of the petitioners from paternal side showing their duly recorded caste as Thakur, merely on the ground of non-residence in the area, has ignored them, unmindful of the fact that the area restrictions have been done away with effect from 27/07/1977. The law as laid down in several judgments including Madhuri Patil Vs. Additional Commissioner, 1994(6) S.C.C. 241, Anand Vs. Committee for Scrutiny & Verification of Tribe Claims, 2012(1) S.C.C.

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113, laying down that the affinity test may be used to corroborate the documentary evidence and should not be a sole criteria to reject a claim, has not been considered in its proper perspective. The reliance placed upon the Govt. Resolution dated 31/07/1957 was unwarranted, in the face of the Amending Act 1976 removing the area restrictions. The decision making process due to non-consideration of the documents in their proper perspective was illegal.

5.

The learned Counsel for the petitioners invited our attention to the documents relied upon by the petitioners, (as many as 53 documents) to buttress their claim of belonging to the Thakur Scheduled Tribe, which are as under: Sr.

No.

Nature of documents Name Caste recorded as Date of admission/ Birth/Death Relation with the applicant Remark s Caste Certificate Kum. Dipalee Shivdas Sonawane Thakur 27.11.2003 Applicant No.1 School Leaving Certificate Kum. Dipalee Shivdas Sonawane Thakur 19.02.2002 Applicant No.1 School Leaving Certificate Kum. Dipalee Shivdas Sonawane Thakur 01.06.1992 Applicant No.1 Extract of School Admission Register Shivdas Baburao Sonawane Thakur 02.07.1966 Father of applicant No.1 School Leaving Certificate Shivdas Baburao Sonawane Thakur 02.07.1966 Father of applicant No.1 School Leaving Certificate Shivdas Baburao Sonawane Thakur 18.06.1971 Father of applicant No.1

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Caste Certificate Shivdas Baburao Sonawane Thakur 22.07.1977 Father of applicant No.1 Issued by E.M.

Niphad First page of service book Shivdas Baburao Sonawane Hindu Thakur - Father of applicant No.1 Ration card Shivdas Baburao Sonawane - - Father of applicant No.1 Identity cardMaharashtra Thakur Jamat Seva Mandal Shivdas Baburao Sonawane Anusuch it Jamati Thakur - Father of applicant No.1 School Leaving Certificate Baburao Ramji Thakur Thakur Grandfather Death Certificate Baburao - 12.09.1970 Grandfather School Leaving Certificate Anna Baburao Thakur Hindu Thakur /04/1952 Uncle School Leaving Certificate Pralhad Baburao Thakur Thakur 20/06/1958 Father of applicant No.2 School Leaving Certificate Baburao Ramji Thakur Thakur 11.3.1921 Grandfather Affidavit (validity) Pralhad baburao Sonawane - 15-06-2004 Father of applicant No.2 17.

Certificate of validity Pralhad Baburao Sonawane Thakur 14.06.2000 Father of applicant No.2 Certificate of validity Bhavesh Pralhad Sonawane Thakur 14.06.2000 Real brother of applicant No.2 Certificate of validity Suhasini Pralhad Sonawane Thakur 16.04.2004 Real sister ofapplica nt No.2 Caste Certificate Darshana Pralhad Sonawane Thakur 15.11.2000 Applicant No.2 School Leaving Certificate Darshana Pralhad Sonawane Thakur (A.J.) 25.06.1997 Applicant No.2 School Leaving Certificate Pralhad Baburao Sonawane Hindu Thakur 12.06.1967 Father of applicant No.2 First page of service book Pralhad Baburao Sonawane Hindu Thakur - Father of applicant No.2

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24.

Caste Certificate Pralhad Baburao Sonawane Thakur 11.11.1991 Father of applicant No.2 25.

Death certificate BaburaoRamji Dagadu Thakur - 12.09.1970 Grand father of applicant No.2 26.

Extract of School Admission Register Darshana Pralhad Sonawane Thakur (A.J.) 02.06.1993 Applicant No.2 Birth certificate Darshana Pralhad Sonawane - 30.07.1988 Applicant No.2 Certificate issued by the Addl. Dist.

Magistrate, E.

Khandesh Rupsing Bhursing Thakur Thakur Schedul ed Tribe 19.08.1952 - Certificate of Age and Domicile, etc.

Darshana Pralhad Sonawane - 26.08.2003 Applicant No.2 Ration card Pralhad Baburao Sonawane & family - - Applicant No.2 & family Affidavit (F) Darshana Pralhad Sonawane Thakur 22.08.2005 Applicant No.2 Identity Letter issued by the Maharashtra Adiwasi Thakur Jamat Seva Mandal Pralhad baburao Sonawane Thakur Anusuch -it Jamati 11.02.1999 Father of applicant No.2 Residence Certificate issued by Talathi, Nandkhurd Darshana Pralhad Sonawane - 10.10.2012 Applicant No.2 Certificate issued by Sarpanch, Nandkhurd Darshana Pralhad Sonawane Thakur Anusuch -it Jamati 09.10.2012 Applicant No.2 Residence Certificate issued by Police Patil, Nandkhurd Darshana Pralhad Sonawane Thakur Anusuch -it Jamati 10.10.2012 Applicant No.2 36.

Death extract Hemsing Ramji Thakur Hindu 16.04.1983 Cousin grandfather 37.

School Admission Register Pralhad Baburao Sonawane Thakur 20.06.1958 Father of applicant No.2 Certificate issued by the Backward Class Welfare Officer, Jalgaon Rupsing Bhursing Thakur Thakur Schedul ed Tribe 19.08.1952 Not blood relative

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7/12 extract Pralhad baburao Thakur - 07.08.2012 Father of applicant No.2 Affidavit Pralhad Baburao Thakur - 26.09.2012 Father of applicant No.2 School Leaving Certificate Anna Baburao Thakur Hindu Thakur 04.06.1958 Uncle School Leaving Certificate Anna Baburao Thakur Thakur 26.08.1959 Uncle Caste Certificate Anna Thakur 22.07.1977 Uncle Baburao Thakur School Leaving Certificate Vimalbai Baburao Thakur Hindu Thakur 05.08.1950 Aunt School Leaving Certificate Kusum Baburao Thakur Hindu Thakur 13.06.1962 Aunt 46.

School Leaving Certificate Narayan Eknath Sonawane Hindu Thakur 02.08.1938 Cousin uncle 47.

Caste Certificate Narayan Eknath Sonawane Thakur 04.06.1978 Cousin uncle Extract of School Admission Register Dagubai Eknath Sonawane Hindu Thakur 20.06.1958 Cousin aunt School Leaving Certificate Ramkrushna Narayan Sonawane Thakur 02.06.1964 Cousin brother Affidavit(F) Bhavesh Pralhad Sonawane - 26.09.2012 Brother of applicant No.2 Affidavit Suhasini Pralhad Sonawane - 26.09.2012 Sister of applicant No.2 School Leaving Certificate Rupsing Bhursing Thakur Thakur 06.07.1943 - Not blood relative Caste Certificate Rupsing Bhursing Thakur Thakur 09.08.1952 - Not blood relative.

(Emphasis Supplied) 6.

The position of law as regards the verification of a caste certificate already issued by the competent authority, is

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already settled by a catena of decisions of the Hon'ble Apex Court as well as the High Courts. The learned Counsel for the petitioners, apart from those stated above, has placed reliance upon:

(a) Judgment in Writ Petition No. 6224 of 2015 Ravindra Pralhad Khare Vs. State of Maharashtra and others, dated 11/07/2019 in respect of Thakur Scheduled Tribe, (b) 2017 S.C.C. Online Bombay 9778, Motilal Namdeo Pawar Vs. Scheduled Tribes Certificates Scrutiny Committee, in respect of Thakur Scheduled Tribe, (c) Writ Petition No. 6142 of 2007 Santosh Purshottam Bayaskar Vs. Scheduled Tribes Caste Certificate Scrutiny Committee, decided on 25th April, 2019, in respect of Thakur Scheduled Tribe, (d) 2012(1) S.C.C. 113 Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and others, in respect of Halbi Scheduled Tribe, (e) Judgment in Writ Petition No. 2363 of 2013 - Prakash Shravan Deore Vs. Scheduled Tribes Certificate Scrutiny Committee, Nashik, decided on 22/02/2019, in respect of Thakur Scheduled Tribe.

(f) Judgment in Writ Petition No. 7048 of 2018 - Ruchir Shriram Pawar Vs. State of Maharashtra and others, decided on 2nd July, 2018, which is in respect of Thakur Scheduled Tribe.

7.

On the other hand, the impugned order is supported

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by Shri S. P. Sonpawale, learned Asstt. Govt. Pleader appearing for all the respondents by submitting that the same is a reasoned one, based upon consideration of all the relevant and material documents as well as the law applicable.

8.

The parameters for testing the veracity of a caste claim, have already been laid down in various judgments, some of which have been relied upon by the learned Counsel for the petitioners, as quoted above. These include the existence of pre as well as the post constitutional documents, weightage being given to pre-constitutional documents, they having higher probative value; the affinity test - focusing on the ethnological connections and anthropological traits, which are peculiar to the tribes - which has corroborative value to support the documentary evidence on record; oral testimony, amongst others.

9.

The judgments relied upon by the learned Counsel for the petitioners, as listed above, and specifically that in case of Motilal Namdeo Pawar Vs. S.T.C.S.T., Nashik - 2017 SCC Online Bombay 9778 has very lucidly dealt with the various aspects of the matter, and, in fact, in para No. 34, expressed its anguish in respect of the approach of the Committees for verification of the Scheduled Tribes in deciding caste claims in an

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adversarial manner by ignoring the settled position of law and misdirecting itself as to the factual position. 10.

Mr. Sonpawale, learned Asstt. Govt. Pleader for the respondents, does not dispute the exposition of law, as laid down in the above cited judgments but has not placed on record any contrary position of law. The impugned order, thus, has to be tested on the above position of law, as applicable to the facts and documents availing on record.

11.

A bare perusal of the documents as listed in para 6 above, which finds place in para 5 of the impugned order, would demonstrate that pre-constitutional documents with the entry of the caste "Thakur", exists in respect of the grand-father of the petitioners. The first such document is the school leaving certificate of the grand-father of the petitioners, namely, Baburao Ramji Thakur, which is dated 11/03/1921 and is at serial number 15 in the list, and records the caste as "Thakur". Another school leaving certificate in respect of the same person is at serial No. 11, which is of the year 1927 and records the caste as "Thakur". The chart then mentions the school leaving certificate of the father of the petitioner/Darshana dated 20/06/1968, which also mentions the caste as "Thakur". It then also refers to entry in School Admission Register of the father of the

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petitioner/Darshana at Sr.No. 37 dated 20/06/1958, wherein the caste is also mentioned as "Thakur". The list also mentions about the entry at Sr. No. 42 in the School Leaving Certificate of Anna Baburao Thakur dated 26/08/1959, which records the caste as "Thakur" and so also, his caste certificate dated 22/07/1977 wherein again entry of "Thakur" is recorded at Sr.No.43 in the list. The document at Sr.No. 4 in the list, which is an extract of School Admission Register of Shivdas Baburao Sonawane, father of the petitioner/Dipalee, which is dated 02/07/1966, records the caste as "Thakur". Similar is the position in respect of documents at Sr.Nos. 5, 6, 7 & 10 in respect of father of the petitioner/Dipalee, wherein his caste is recorded as "Thakur". The other documents in the list also predominantly records the caste as "Thakur", except for a few entries, namely, at Sr.Nos. 8, 13, 23, 41, 45, 46 & 48, wherein the entry "Hindu-Thakur" is recorded.

12.

The Vigilance Report dated 09/08/2004 in respect of petitioner Dipalee at page 37 of the record in Writ Petition No. 10687 of 2015 verifies and certifies the entry of the caste "Thakur" in the school records in respect of the grand-father of the petitioner, Shri Baburao Ramji Thakur, dated 11/03/1921 and the relationship of petitioner Dipalee with Shri Baburao Ramji

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Thakur as of grand-father and grand-daughter. It further certifies that the customs, traits, as verified in the home inquiry, were in consonance with that of 'Thakur' tribe. The report, therefore, recommends the grant of a certificate to petitioner Dipalee. As against this, the Research Officer vide his handwritten note dated 31/07/2013, in merely six lines, comes to the conclusion that the claim of the petitioner is not in consonance with the customs and traits of the 'Thakur' Scheduled Tribes.

13.

Similar is the position in respect of the Vigilance Report of petitioner Darshana Pralhad Sonawane in Writ Petition No. 10689 of 2015, which is at page 44 thereof, in which the School Entry Register of her grand-father Baburao Ramji Thakur of 1927 has been examined, which has the entry 'Thakur'. 14.

In the backdrop of the above, a perusal of the impugned order demonstrates that to turn down the caste claim of the petitioners, the Scrutiny Committee has relied upon data collected by the Vigilance Cell, on the basis of which a chart has been prepared, as listed in para 3, page 9 to 24 of the impugned order, to contend that an entry of "Hindu Thakur" in the record would be enough to deny a claim of belonging to the Scheduled Tribe 'Thakur', as such, an entry would demonstrate the nongenuineness of the claim. The Committee then at page 24 of the

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impugned order lists the surnames of the so called genuine Scheduled Tribe 'Thakur-44' and their locations, all of which list their caste as "Hindu Thakur" and states that it is very important to verify whether the applicants prove their claim as belonging to 'Thakur', Scheduled Tribe, listed at serial No. 44. It further states that tribe 'Thakur' appearing in the documents of the petitioners does not clearly distinguish the social status of the incumbents. It then laments that as a result of removal of area restriction, many non-tribal persons having synonymous nomenclature, who are socially, culturally and ethnically entirely different from each other, have started claiming status of 'Thakur' Scheduled Tribe.

It then embarks on a systematic wholesale slaughter of the documents filed by the petitioners, which has to be read so as to be bedazzled by its absurdity. Pre-constitutional documents have been discarded for no reason whatsoever, post constitutional documents also have been discarded for no reason whatsoever, validity certificates in respect of father, brother and sister of the petitioner Darshana have also been discarded in light of discussion made in issue No.7, as against which issue No.7 only says 'What order ? - As per final order given below', which actually is an indicature of the mechanical manner, in which the caste claims are being dealt with by the Scrutiny Committee.

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Caste Scrutiny Committee has indulged into an exercise, which can only be termed as adversarial in nature, which is indicated from the nature of judgments quoted in the impugned order without reference to the documents or the entries, as contained therein. In-spite of the admitted position, which is to the knowledge of the Caste Scrutiny Committee regarding the position, reiterated time and again by the High Court, which is reflected from the judgments as relied upon by the learned Counsel for the petitioner, stereotype reasoning has been given by conveniently ignoring the series of decisions, which have negatived the contentions raised in the impugned order for discarding the pre-constitutional documents.

15.

It was at-least expected from the Caste Scrutiny Committee that each document listing the caste in respect of the ancestors of the petitioner, should have been properly considered and dealt with and individual reasons ought to have been given as to why the same was not being relied upon or held to be credible. A perusal of answer to issue No.1 at paras 4 to 8 in the impugned order, demonstrates that all these documents have been swept aside with a broom, without any thought for its consequences, only on some preconceived notions based upon an unfounded fear on part of the Committee of benefits being

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taken by persons, who may not be entitled to the same. Here, it would be trite to point out that the chart prepared by the Committee itself as listed in page 25 of the impugned order listing surnames of genuine scheduled tribe 'Thakur' - 44, contains the entry 'Hindu Thakur' against all the 21 entries therein, which would demonstrate that the apprehension of the Scrutiny Committee about pseudo Scheduled Tribes obtaining benefits is totally unfounded. Had it been otherwise, the entry in the caste column of the table at page 24 of the impugned order would not have mentioned "Hindu Thakur".

Thus, it is a great contradiction on part of the Scrutiny Committee to say that a "Hindu-Thakur" with the surnames as listed in column 5 therein, would be a genuine Scheduled Tribe 'Thakur' within the entry 44 for the reason of his location in the Taluka of Igatpuri and Tryambakeshwar, as listed therein, as against which a person in whose school leaving certificate of the year 1921, the entry 'Thakur' is listed, would not be a genuine Scheduled Tribe 'Thakur' - 44. Thus, the entire reasoning of the Scrutiny Committee is totally convoluted and cannot stand to reason at all. This is more so, in light of the position that the area restrictions have already stood removed as far back as 1976 and the theory of migration has already become an accepted fact.

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16.

A perusal of the impugned order further demonstrates that it does not give any logical reason for differing from the Vigilance Committee Report nor does the note of the Research Officer inspire any confidence as it does not indicate of having taken into consideration the change which time and migration would have upon the traits and customs being practiced by a person. Such a pedantic approach is not expected from a person, who is appointed as a Research Officer, who cannot be oblivious to the changes, which may be effected upon by migration, time and assimilation of the person in the community in which a person resides.

17.

The documents listed in the chart in para 6 above, lead to a irresistible conclusion, that the common ancestor of the petitioners, namely, Baburao Ramji Thakur, belonged to the caste "Thakur", which later-on came to be notified as a Scheduled Tribe. The relationship between the petitioners and their grandfather, namely, Baburao Ramji Thakur, has been established by the Vigilance Committee Report. The Caste Scrutiny Committee does not in its impugned order dispute the genuineness of the documents, as listed in para 6 above, or for that matter, the entries made therein, or the relationship, all of which lead to an irresistible conclusion that the petitioners belong to the

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Scheduled Tribe "Thakur" and we hold as such. 18.

Thus, considering the position as availing from the record and specifically the entries, as listed in the chart at para 6 above, which entries are based upon documents, verified and certified by the Vigilance Committee, we find that the impugned order cannot be sustained on the touchstones of the law as applicable. We, therefore, quash and set aside the impugned common order dated 31/08/2015 passed by the respondent No.1/Caste Scrutiny Committee, Nandurbar Region, Nandurbar, and hold that the petitioners belong to the Scheduled Tribe "Thakur". We, therefore, direct the Scheduled Tribes Certificate Scrutiny Committee, Nandurbar, to forthwith issue the certificate of validity in favour of both the petitioners. 19.

Rule is made absolute in the above terms.

( AVINASH G. GHAROTE, J.) ( PRASANNA B. VARALE, J.) Madkar