Unless Contrary Proven, Pre-Independence Evidence Has Probative Value for Claiming Validity of Caste Certificate: Bombay High Court

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EXCERPT:

This writ petition was instituted under Article 226 of the Constitution of India challenging the order against respondent no.2, The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar for invalidating caste claim of the petitioner under the head of “Thakur Scheduled Tribe” on 28.10.20 in the case Shreeharsh s/o Sunil Thakur v. the State of Maharashtra

BRIEF FACTS:

The petitioner is a resident of Chalisgaon, District Jalgaon, and is undergoing education in college. The committee of respondent no.2 referred to the tribe certificate of the petitioner as “Thakur Scheduled Tribe” for verification along with documentary evidence since 1912. Thereafter, a vigilance cell report was submitted to the committee. In accordance with the report, on 20.10.20, a show-cause notice was served to the petitioner for his reply to which the petitioner submitted his reply on 26.10.20. The contention pleaded by the petitioner was that the committee rejected the caste certificate without considering documentary evidence in his favor. The caste certificate approval is essential for the admission, as the petitioner is predicting to qualify for NEET (UG) – 2020 examination as well as MHT-CET-2020. 

PETITIONER ARGUMENTS:

The council contends before the court that the school admission record, school leaving certificate of the petitioner mentioned his caste as “Thakur”. In addition to it, the petitioner’s father’s school leaving certificate mentioned caste as Thakur, and also his real grandfather’s admission and school leaving certificate mention caste as Thakur but the latter document was not considered by the committee which entails crucial importance. 

All legal and relevant documents supporting the contention of caste as Thakur for tribe claim of the petitioner were produced before the committee but the same was disregarded even though it included pre-independence documents. He contended that the committee only relied upon the report of the research officer and referred citations and there was no contra evidence that disproved the factual documentary evidence. Furthermore, the committee did not consider the information produced by the petitioner’s father in relation to the affinity test by declaring that such documents are not in association with the research officer report.

The counsel pleads that the order stands in conflict with the legality and factual criteria. Therefore, the order dated 28.10.20 deserves to be quashed and set aside and also issue a validity caste certificate belonging to “Thakur” Scheduled Tribes.

RESPONDENT ARGUMENTS:

The counsel pleaded before the court that the committee duly considered vigilant report, report submitted by research officer, and documentary evidence produced by the petitioner and thereafter undertook the order dated 28.10.20 for invalidating caste certificate of the petitioner as the petitioner failed to prove his caste as “Thakur Scheduled Tribes”.

COURT OBSERVATION:

  1. PRE-INDEPENDENCE DOCUMENT:

The court observed that the petitioner’s father has presented a genealogy of the affidavit and copies of school records from his grandfather, cousin grandfather, and father, all documents mentioned the caste of Thakur. However, the vigilance officer report submitted neither documentary evidence to disprove the petitioner’s contention nor provided any reasons for not taking into consideration pre-independence documents even in absence of contra evidence. Therefore, unless the contrary is proven from the evidence on record, pre-independence evidence has probative value.

  1. AFFINITY TEST:

The affinity test determines the anthropological and ethnological traits etc. of the petitioner. Further, the court contended that the affinity test is not a litmus test. The court took the reference of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113, it was held that these two criteria for ascertaining validity caste claim cannot be an absolute rule which could be applied strictly in such accordance. The following parameters could be considered while dealing with caste claim:

  1. The pre-independence documents must be given higher priority as such provide higher probative value for declaration status of caste than post-independence. Moreover, in the event of suspicion upon the validity of the document, reliance must be placed upon oral evidence by providing an opportunity to present his evidence.
  2.  The affinity test dealing with ethnological connections with the Scheduled Tribe must be approached with caution because nowadays, modernization, migration, and communication have filled the gap of backwardness and advanced characteristics of the tribe. Hence, the affinity test cannot be considered a litmus test for ascertaining caste claims. The test may be used for corroborating documentary evidence and cannot be the sole criteria to reject the claim. 

COURT DECISION:

The court concluded that the documentary evidence presented by the petitioner from the pre-independence era clearly mentioned the caste of the family of the petitioner as Thakur. Moreover, the committee has given undue emphasis on vigilance officer reports with no contra evidence or documents to disregard the petitioner’s contention of caste claim. Therefore, the committee order lacked in properly considering documentary evidence and thereafter, arrived at the incorrect conclusion of invalidating the caste claim of the petitioner. The petitioner is entitled to availing validity of the caste certificate of “Thakur Scheduled Tribes”.  

Click here to read the judgment.


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