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Prakash Ghanshamdas Nathani and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2388 of 1981
Judge
Reported in1982(1)BomCR408
ActsScheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976
AppellantPrakash Ghanshamdas Nathani and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateN.H. Gursahani and ; B.J. Mulchandani, Advs.
Respondent AdvocateD.P. Hedge, A.G.P. for A.G.P. for respondents 1 and 2
DispositionPetition succeeded
Excerpt:
.....enclosed certificate issued by special executive magistrate certifying that he belonged to 'hindu thakur' caste recognised as scheduled tribe under entry no. 44 - petitioner made out prima facie case for reserved seat - respondents directed to give to petitioner benefit of reserved seat in medical college. - - 44 under part ix of the second schedule to this amendment act of 1976. it is however open to government to point out how the evidence led by the student is unreliable or untrue or that there is other evidence on the basis where of the student's claim can be defeated. the ground that the student failed to produce his father's school leaving certificate is untenable. should some other member of the student's family apply for admission under a reserved seat meant for scheduled..........he has no knowledge of thakur tribe and does not know the dialect of the notified scheduled tribe thakur as stated by him at the time of interview. all his relatives are sindhis (thakur) and they belong to thakur caste of sindh. he has not produced school leaving certificate of his father. as per government circular political and services department no. bac.1157/j dated 31-7-1957, the thakur community which has migrated to state from sindh has not been recognised as a backward class and that persons belonging to this community for recruitment in government services and educational concessions, etc.'. (sic).on this report, the student was denied admission, his appeal to the state government was also rejected on the ground that' he does not belong to the 'thakur' tribe which is.....
Judgment:

B. Lentin, J.

1. The question that arises for determination in this writ petition is whether the 1st petitioner is entitled to the benefit of a reserved seat in a Medical College in Maharashtra on the ground that he is Thakur by caste which is recognised as a Scheduled Tribe under Entry No. 44 of Scheduled II, Part IX in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (referred to hereafter as ' the Amendment Act)'.

2. The 1st petitioner is the son of the 2nd petitioner who claims to have migrated to India from Sindh Province (now Pakistan) in 1942. However, according to the State Government, his migration to India was after partition. Be that as it may, the year of migration is of no consequence. His son, viz. The 1st petitioner (referred to hereafter as 'the student') was born at Kalyan on 9th February, 1964. After passing his 12th standard from R.K. Talreja Junior College, Ulhasnagar, in 1981, and claiming to be a member of a Scheduled Tribe, viz. 'Thakur', he applied for a reserved seat for the First M.B.B.S. Course in June 1981. In his application form under the cyclostyled heading 'Caste' he described himself as 'S.T.', viz. belonging to Scheduled Tribe. As required by Rule 10 of the Government Rules, he enclosed a certificate dated 21st July, 1980 issued by the Special Executive Magistrate, Ulhasnagar, certifying that the student belongs to Hindu Thakur Caste which is recognised as a scheduled tribe under Entry No. 44 of the Amendment Act.

3. Pausing here for a moment, section 4 of the Amendment Act provides that the Scheduled Tribes Orders are hereby amended in the manner and to the extent specified in the Second Schedule. In the Second Schedule in Part IX under the heading 'Maharashtra' Entry No. 44 reads as under :---

'44, Thakur, Thakur, Ka Thakur, Ka Thakur, Ma Thakur, Ma Thakur.'

4. To continue the narration of events as required by Rule 10, the aforesaid certificate issued by the Executive Magistrate was sent to the Director of Social Welfare, Pune for verification as to its validity and correctness and report of his findings to the Dean. Subject to this, the student was given provisional admission. Thereafter the student was interviewed by the Director of Social Welfare. The student produced his school and college leaving certificates certifying him as belonging to the Thakur Caste. The Director of Social Welfare made the following report :

'Shri Nathani belongs to Thakur Caste from Sindh and not notified Thakur tribe of Maharashtra. His family has migrated from Sindh after partition. His mother tongue is Sindhi while the Thakur from Maharashtra speak (Thakur) dialect. He has no knowledge of Thakur tribe and does not know the dialect of the notified Scheduled tribe Thakur as stated by him at the time of interview. All his relatives are Sindhis (Thakur) and they belong to Thakur Caste of Sindh. He has not produced school leaving certificate of his father. As per Government Circular Political and Services Department No. BAC.1157/J dated 31-7-1957, the Thakur community which has migrated to State from Sindh has not been recognised as a Backward Class and that persons belonging to this community for recruitment in Government services and educational concessions, etc.'. (Sic).

On this report, the student was denied admission, His appeal to the State Government was also rejected on the ground that' he does not belong to the 'Thakur' tribe which is included in the list of Scheduled Tribes of Maharashtra' Hence the present petition.

5. On behalf of the Director of Social Welfare, his Superintendent S.D. Yadav has filed an affidavit-in- reply, stating that the student belongs to the Thakur community (caste) from Sindh Province and not to the Thakur tribe of Maharashtra. His family migrated from the former Sindh Provide after partition and that his mother tongue is naturally Sindhi. Thakur tribe of Maharashtra has been notified as a Scheduled Tribe. The student does not know the dialect of the Thakur tribe of Maharashtra nor does he know customs or the tribal rituals of the Thakur tribe of Maharashtra. The Thakur tribe of Maharashtra has been notified as a Scheduled Tribe and not Thakur community and persons belonging to Thakur community (caste) who migrated from Sindh. Vide Government Circular dated 31st July, 1957, Thakur community which has migrated to the State from the former Sindh Province has not been recognised as a backward class and, therefore, persons belonging to the said Thakur Community are not eligible to take advantage of reserved seats. Such is the affidavit-in-reply.

6. At the outset it may be stated that in this case tremendous confusion has been engendered by equating caste with tribe. It may also be stated that this confusion is not entirely of the making of the student but rather more by the phraseology of Rule 10 and the certificates required to be produced, with emphasis on caste. In fact these certificates which are stereotype and printed or cyclostyled with blanks to be filled in, are headed 'Caste Certificate' Rule 10 requires the Director of Social Welfare to verify the validity and correctness 'the Caste Certificate' and to report his findings thereon to the Dean. The certificate dated 21st July, 1980 issued by the Executive Magistrate with the heading 'Caste Certificate' is also a cyclostyled proforma with blanks to be suitably filled in. In the body of this certificate the word 'caste' is cyclostyled, prior to which the word 'Thakur' is written in ink. Similarly, the second column of the students's application for admission reads thus :---

'Caste claimed by the candidate student indicating the category of the Backward Class'.

Under this heading the student has written 'Thakur S.T.', the letters 'S.T. denoting 'Scheduled Tribe'. Thus it does appear that despite the fact that the cyclostyled proforma of the certified and the printed college admission form, contained the word 'Caste', the student consistently maintained to be a Thakur belonging to the Scheduled tribe. In the light thereof no advantage can be taken by the respondents of the petitioners averment in the petition of being Thakur by caste. This averment is immediately followed by the averment that it is recognised as a Scheduled Tribe under Entry No. 44. This averment is itself based on the cyclostyled Performa-certificate issued by the Executive Magistrate. For that matter, an identical situation had arisen before an earlier Division Bench (Deshmukh, C.J. and Bhonsale, J.) in (Writ Petition No. 2282 of 1980)1 where a student, one Sunita claimed entitlement to a reserved seat on the ground of her being a member of the Scheduled Tribe belonging to the Thakur Caste of the Thakur community. The ratio laid down by the earlier Division Bench was that the student must make out a prima facie case that he belongs to one of the groups mentioned in Entry No. 44 under Part IX of the Second Schedule to this Amendment Act of 1976. It is however open to Government to point out how the evidence led by the student is unreliable or untrue or that there is other evidence on the basis where of the student's claim can be defeated.

7. In the peculiar facts and circumstances of this case, in view of the nature of the certificate, viz. 'Caste Certificate'', that the student was required to produce and in the light of the certificate issued by the Special Executive Magistrate and in the light of the student styling himself in the college admission form as 'S.T.' Under the column headed 'Caste', it may be said that the student made out a prima facie case for a reserved seat.

8. However, the grounds given in the affidavit-in-reply refuting the prima facie case made out by the student and foreshadowed in the report of the Director of Social Welfare, are not tenable, at least in the facts of this case where as stated earlier, the confusion in equating caste with tribe has arisen from the nature of the certificates required by Government and regarding which the student naturally has no voice. Merely because the student is a Sindhi whose father migrated to India, or because the student's 'mother tongue' is Sindhi or because he has no knowledge of the dialect of the notified Scheduled Tribe, or his relatives are Sindhis, is a matter hardly of consequence. Carried to its logical conclusion, a person born, say in a particular religion or bred and brought up in a particular community would be considered as not belonging to that religion or community should he not be able to read or write the language expected of him or is ignorant of religious rites, customs and rituals of the religion in which he is born. The perpetuation of the confusion sought to be created between caste and tribe is in the facts of this case, hardly warranted in the light of the fact that as stated earlier, the student described himself as a Thakur belonging to the Scheduled Tribe against the printed or cyclostyled headings 'Caste'. There is also nothing in the Amendment Act to indicate that a person cannot be said to belong to a Scheduled Tribe if he has migrated after partition. The ground that the student failed to produce his father's school leaving certificate is untenable. No rule has been pointed out to us requiring a candidate to produce any such certificate. There is also nothing on record to indicate that the student was asked to produce any such certificate.

9. In the facts and circumstances of this case, the student has made out a prima facie case entitling him to a reserved seat in the Medical College. The prima facie case so made out cannot be said to have been dislodged by the reasons given in the Reports of the Directors of Social Welfare or the affidavit-in-reply.

10. We, therefore, direct the respondents to give to the students the benefit of the reserved seat in a Medical College on the ground that he belongs to a Scheduled Tribe under Entry No. 44. We, however, make it clear that this judgement is not, and is not intended to be res judicata between the student's family and Government or even between the student himself and Government, in the event of his applying for a reserved seat hereafter for any other purpose on the ground of his belonging to a Scheduled Tribe. Should some other member of the student's family apply for admission under a reserved seat meant for Scheduled Tribe or should even the student himself hereafter do so for any other purpose, it shall be open to Government to disprove such claim on further and better grounds. It is only in the peculiar facts and circumstances of this case and only in relation to the student's admission to the Medical College that the student's case is closed and he is declared to be eligible to the benefit of a reserved seat in the Medical College.

11. In the result, the petition must succeed and the rule is made absolute as indicated in the previous paragraph. There will be no order as to costs.


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