RAVINDRA v. GHUGE &R. M. JOSHI, JJRESERVED ON
Facts
WP-8039-2009 II.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 8039 OF 2009Kum. Minal D/o Bharatsing ThakurAge: 21 years, Occ: Service,R/o. 25-A, Nandanvan Bank Colony,Wadi Bhokar Road, Near Ramraje School,Dhule, Dist. Dhule...PetitionerVersus1)The State of Maharashtra,Through its Secretary, Tribal Development Department,Mantralaya, Mumbai-32.2)The Committee for Scrutiny andVerification of Tribe Claims, Through its Dy.Director (Research), Nandurbar.3)The Sub Divisional Officer Dhule,District Dhule.4)The Zilla Parishad, DhuleTrough It's Chief Executive Officer,Dhule...RespondentsWITHWRIT PETITION NO. 8380 OF 2009Sonal d/o Bharatsing Thakur, Age: 22 Years, Occ: Nil, R/O: 25- A, Nandanvan Bank Colony,Wadi Bhokar Road, Near Ramraje School, Dhule, District Dhule....PetitionerVersus1)The State Of Maharashtra,Through Its Secretary, Page 1 of 21
Legal Reasoning
WP-8039-2009 II.odtlay down the law that in all cases wherein the validitycertificate has been issued to the family members, nofurther inquiry is required. It is his submission thatit is only when the caste certificate has been grantedto the blood relative of the Applicant after holding aninquiry as contemplated under the Act and following dueprocedure further inquiry may not be necessary. It issubmitted that the validity issued to the father of thePetitioner is not after following the procedure as laiddown pursuant to the judgment in case of Kumari MadhuriPatil & Anr. Vs. Addl. Commissioner, Tribal Development& Ors, (1994) 6 SCC 241. It is thus contended thatsince the tribe validity of the father has been issuedby relying upon the judgments of this Court, butwithout conducting any inquiry, the same cannot becomea basis for validating tribe claim of the Petitioners.6.Before appreciating the facts of the presentcase, it would be fruitful to take into considerationthe position of law with regard to the validation ofthe caste/tribe claim of any person. The Hon’bleSupreme Court in case of Anand Katole vs. Committee andOthers, 2012(1) SCC 113 in paragraph 18 has held asPage 5 of 21 WP-8039-2009 II.odtunder:18. It is manifest from the afore-extractedparagraph that the genuineness of a casteclaim has to be considered not only on athorough examination of the documentssubmitted in support of the claim but alsoon the affinity test, which would includethe anthropological and ethnological traitsetc., of the applicant. However, it isneither feasible nor desirable to lay downan absolute rule, which could be appliedmechanically to examine a caste claim.Nevertheless, we feel that the followingbroad parameters could be kept in viewwhile dealing with a caste claim:(i) While dealing with documentaryevidence, greater reliance may beplaced on pre-independence documentsbecause they furnish a higher degreeof probative value to thedeclaration of status of a caste, ascompared to post-Independencedocuments. In case the applicant isthe first generation ever to attendschool, the availability of anydocumentary evidence becomesdifficult, but that ipso facto doesnot call for the rejection of hisclaim. In fact the mere fact that heis the first generation ever toattend school, some benefit of doubtin favour of the applicant may begiven. Needless to add that in theevent of a doubt on the credibilityof a document, its veracity has tobe tested on the basis of oralevidence, for which an opportunityPage 6 of 21 WP-8039-2009 II.odthas to be afforded to the applicant;(ii) While applying the affinitytest, which focuses on theethnological connections with thescheduled tribe, a cautious approachhas to be adopted. A few decadesago, when the tribes were somewhatimmune to the cultural developmenthappening around them, the affinitytest could serve as a determinativefactor. However, with themigrations, modernisation andcontact with other communities,these communities tend to developand adopt new traits which may notessentially match with thetraditional characteristics of thetribe. Hence, affinity test may notbe regarded as a litmus test forestablishing the link of theapplicant with a Scheduled Tribe.Nevertheless, the claim by anapplicant that he is a part of ascheduled tribe and is entitled tothe benefit extended to that tribe,cannot per se be disregarded on theground that his present traits donot match his tribes’ peculiaranthropological and ethnologicaltraits, deity, rituals, customs,mode of marriage, death ceremonies,method of burial of dead bodies etc.Thus, the affinity test may be usedto corroborate the documentaryevidence and should not be the solecriteria to reject a claim.7.In case of Maharashtra Adiwasi Thakur JamatPage 7 of 21 WP-8039-2009 II.odtSwarakshan Samiti (supra), the Hon’ble Supreme Court inparagraph nos. 20, 22 to 24 and 36 has held as under:20. It is not possible to exhaustively laydown in which cases the Scrutiny Committeemust refer the case to Vigilance Cell. Oneof the tests is as laid down in the case ofKumari Madhuri Patil. It lays down that thedocuments of the pre-Constitution periodshowing the caste of the applicant andtheir ancestors have got the highestprobative value. For example, if anapplicant is able to produce authentic andgenuine documents of the pre-Constitutionperiod showing that he belongs to a tribalcommunity, there is no reason to discardhis claim as prior to 1950, there were noreservations provided to the Tribesincluded in the ST order. In such a case, areference to Vigilance Cell is notwarranted at all.22. We can also contemplate one morescenario which is found in many cases.These are the cases where the applicantrelies upon caste validity certificatesissued to his blood relatives. Obviously,such a validity certificate has to beissued either by the Scrutiny Committeeconstituted in terms of the directionsissued in Kumari Madhuri Patil’s case orconstituted under the Rules framed underthe 2000 Act. In such a case, firstly, theScrutiny Committee must ascertain whetherthe certificate is genuine. Secondly, theScrutiny Committee will have to decidewhether the applicant has established thatthe person to whom the validity certificatePage 8 of 21 WP-8039-2009 II.odtrelied upon by him has been issued is hisblood relative. For that purpose, theapplicant must establish his precise andexact relationship with the person to whomthe validity certificate has been granted.Moreover, an enquiry will have to be madeby the Scrutiny Committee whether thevalidity certificate has been granted tothe blood relative of the applicant by theconcerned Scrutiny Committee after holdingdue enquiry and following due procedure.Therefore, if the Scrutiny Committee hasissued a validity certificate contemplatedin terms of the decision in the case ofKumari Madhuri Patil, the examination willbe whether the enquiry contemplated by thesaid decision has been held. If thecertificate relied upon is issued aftercoming into force of the 2000 Act, theScrutiny Committee will have to ascertainwhether the concerned Scrutiny Committeehad followed the procedure laid downtherein as well as in the ST Rules or theSC Rules, as the case may be. For thisverification, the Scrutiny Committee canexercise powers conferred on it by Section9(d) by requisitioning the record of theconcerned Caste Scrutiny Committee, whichhas issued the validity certificate to theblood relative of the applicant. If therecord has been destroyed, the ScrutinyCommittee can ascertain whether a dueenquiry has been held on the basis of thedecision of the Caste Scrutiny Committee bywhich caste validity has been granted tothe blood relative of the applicant. If itis established that the validitycertificate has been granted withoutholding a proper inquiry or withoutPage 9 of 21 WP-8039-2009 II.odtrecording reasons, obviously, the castescrutiny committee cannot validate thecaste certificate only on the basis of suchvalidity certificate of the blood relative.23. In a given case, the Scrutiny Committeemay be satisfied that the caste validitycertificate relied upon by the applicanthas been issued after making a lawfulenquiry. But if the Scrutiny Committee isof the view that the applicant has notclearly established that the person to whomcaste validity certificate produced onrecord has been granted is his bloodrelative, in terms of sub-rule (2) of Rule12 of the ST Rules, the Caste ScrutinyCommittee will have to refer the case forconducting an enquiry through VigilanceCell. In such a case, the Vigilance Cellcan be directed by the Scrutiny Committeeto conduct an enquiry limited to therelationship claimed by the applicant withthe person in whose favour the castevalidity certificate has been issued. If,on the basis of the report of the VigilanceCell, the Scrutiny Committee is satisfiedthat the person in whose favour castevalidity certificate has been issued is ablood relative of the applicant and lawfulenquiry has been conducted before issuingthe validity certificate, the ScrutinyCommittee will have to issue validitycertificate even if the applicant does notsatisfy the affinity test. For example, ifit is established that the father orgrandfather of the applicant has been givena caste validity certificate after holdinga lawful enquiry in accordance with law,the Caste Scrutiny Committee cannot holdPage 10 of 21
Arguments
WP-8039-2009 II.odtTribal Development Department, Mantralaya, Mumbai-322)The Committee For Scrutiny andVerification of Tribe Claims, Through Its Dy.Director (Research), Nadurbar, Division Nadurbar.3)The Sub Divisional Officer,Dhule, Dist. Dhule4)The North Maharashtra University,Through it's Registrar and Chief Examination Controller, Jalgaon District Jalgaon5) The Principal,K.C.E B.ED College, Jalgaon, District Jalgaon....Respondents...Mr. K. T. Shirurkar, Advocate for the PetitionerMr. R. S. Wani, AGP, for the Respondent Nos. 1 to3/State...CORAM:RAVINDRA V. GHUGE &R. M. JOSHI, JJRESERVED ON:MARCH 28, 2024PRONOUNCED ON:MAY 08, 2024JUDGMENT (PER R. M. JOSHI, J)1.These Petitions involve common questions offact and law. Learned Counsels for the Petitioners andRespondent submitted common arguments. By consent ofboth sides, both Petitions are decided by this commonjudgment.Page 2 of 21 WP-8039-2009 II.odt2.Petitioners are real sisters and daughters ofBharatsing Thakur. They claim that Thakur TribeCertificate was issued to them on 30.10.2000 and30.11.2000. Petitioner Minal came to be appointed onthe post of Shikshan Sevak by Zilla Parishad, Dhule on21.01.2009 and she is in service. As per the prescribedprocedure, tribe validity certificate of thisPetitioner was forwarded for verification along withnecessary documents to Respondent No. 2 – Committee.Both Petitioners claim to have submitted 22 documentsin support of their tribe validity claim. It is a caseof Petitioners that evidence was submitted beforeCommittee with regard to the school leaving certificateof her grandfather viz. Gulabrao Thakur wherein hiscaste is recorded as Thakur as on 25.07.1927. It isfurther claimed that their father B. G. Thakur wasissued with tribe validity certificate on 22.12.2003.Similarly, their paternal cousin brother has also beenissued such certificate by the competent Committee.According to Petitioners, Caste/Tribe ScrutinyCommittee, however, in ignorance of evidence on record,by impugned order dated 12.11.2009, invalidated thetribe claim of the Petitioners.Page 3 of 21 WP-8039-2009 II.odt3.We have heard the learned Counsels for therival sides and considered documents on record so alsorelevant files of the Petitioners before the ScrutinyCommittee.4.Learned Counsel for the Petitioners submitsthat since the father and paternal cousin brother ofthe Petitioners have been issued tribe validitycertificate, it was not necessary for the Committee toundertake affinity test in order to reject the claim ofthe Petitioners for validity of their tribe. In supportof his submissions, he placed reliance on the judgmentof the Hon’ble Supreme Court in case of MaharashtraAdiwasi Thakur Jamat Swarakshan Samiti vs. The State ofMaharashtra and Others, 2023 (2) Mh.L.J. 785. He alsosubmits that as per the law settled by the SupremeCourt affinity test is not a litmus test fordetermination of the caste/tribe claim and the same isnot essential in every case.5.Learned AGP opposed the said contention bysubmitting that the judgment in case of MaharashtraAdiwasi Thakur Jamat Swarakshan Samiti (supra) does notPage 4 of 21
Decision
WP-8039-2009 II.odtthat the grandfather or father of theapplicant, as the case may be, belongs toScheduled Tribe but the applicant does notbelong to Scheduled Tribe. Only if therelationship as pleaded by the applicant isnot established, the other evidenceproduced by the applicant and the result ofthe affinity test can be taken intoconsideration by the Scrutiny Committee.24. As provided in sub-rule (7) of Rule 12of the ST Rules, the Vigilance Cell’sreport is not conclusive. If on the basisof the report of the Vigilance Cell andother evidence on record, the ScrutinyCommittee comes to a conclusion that thecaste claim is genuine, a caste validitycertificate can be issued. Only on theground that the report of vigilance cell isin favour of the applicant, validitycertificate cannot be mechanically grantedwithout application of mind. If the reportof the Vigilance Cell is against theapplicant, his caste claim cannot berejected only on the basis of the report ofthe Vigilance Cell without providing a copyof the report to the applicant and withoutgiving him an opportunity of being heard onthe report. After giving an opportunity tothe applicant to make submissions on thereport, the Scrutiny Committee may rejectthe caste claim. In a given case, theScrutiny Committee can also record afinding that the caste claim is genuine. Itall depends on the facts of each case.36. Thus, to conclude, we hold that:(a) Only when the Scrutiny Committee afterPage 11 of 21 WP-8039-2009 II.odtholding an enquiry is not satisfied withthe material produced by the applicant, thecase can be referred to Vigilance Cell.While referring the case to Vigilance Cell,the Scrutiny Committee must record briefreasons for coming to the conclusion thatit is not satisfied with the materialproduced by the applicant. Only after acase is referred to the Vigilance Cell formaking enquiry, an occasion for the conductof affinity test will arise.(b) For the reasons which we have recorded,affinity test cannot be conclusive eitherway. When an affinity test is conducted bythe Vigilance Cell, the result of the testalong with all other material on recordhaving probative value will have to betaken into consideration by the ScrutinyCommittee for deciding the caste validityclaim;and(c) In short, affinity test is not a litmustest to decide a caste claim and is not anessential part in the process of thedetermination of correctness of a caste ortribe claim in every case.8.This judgment no doubt lays down law that incase of a validity certificate has been granted to theblood relative from the paternal side of the Applicantand that the relationship with such person isestablished, no further inquiry would be required to beconducted by the Scrutiny Committee where validity isPage 12 of 21 WP-8039-2009 II.odtgranted to such person, after due inquiry and followingprocedure established. However, in case of validitybeing granted to the blood relative of the Applicant bythe Scrutiny Committee is without holding a properenquiry and without recording reasons, the castescrutiny committee cannot validate caste/tribecertificate only on the basis of such validitycertificate of the blood relative.9.While considering rival contentions, we findit necessary to record certain undisputed facts. Thereis no dispute about the fact that Petitioners arebiological daughters of Bharatsingh Thakur, who holdstribe validity certificate issued by the CompetentCommittee. Similarly, Vishal, their paternal cousinbrother, also holds such a certificate. We madespecific query to the learned AGP about any show causenotice being issued to them for cancellation ofvalidity certificate or actual cancellation of thesame, since filing of Petitions relates back to year2009. On written instructions the learned AGP madestatement that the tribe validity certificates of bothfather and cousin brother of Petitioners have not beenPage 13 of 21 WP-8039-2009 II.odtcancelled nor any show cause notice is issued to themby Committee for cancellation thereof. 10.In the light of the aforesaid fact, perusal ofimpugned order indicates that vigilance inquiry wasconducted and the report was submitted to the Committeeon 04.07.2006. The findings of such inquiry are asfollows:The information regarding traitscharacteristics, Gods, Goddesses, surnames,festivals, traditions, ancestraloccupation, customs, songs, dances of theapplicants family do not resemble those ofThakur Scheduled Tribe and thus hisaffinity is not proved towards ThakurScheduled Tribe. 11.The committee has also taken intoconsideration documents filed by the Petitioners andthe reasons are recorded in respect of said documentsto hold that the Petitioners have not proved theirclaim by way of documentary evidence. The said findingsrecorded by the Committee are reproduced herein below.I.The documents quoted at Sr. No. 1, 5,6 and 16 are copies of Caste Certificate,an affidavit sworn in and validitycertificates in respect of applicant'sfather as well as their cousin. The ratioPage 14 of 21 WP-8039-2009 II.odtof these documents can not be given to theapplicants in view of the discussion madein the issue no.4 of this orderII. The documents quoted at Sr. No.2,3,4,15,19,20 and 21 are copies of SchoolRecord in respect of both the applicantswherein caste entries are -recorded aseither Thakur or Hindu Thakur. Thedocuments produced by the applicant inrespect of the applicants themselvesdescribe their caste as Thakur. However nodocument describes them as Thakur ScheduledTribe These documents are quite consistentwith the fact that they belongs to Thakurcaste a non-tribal group and not to ThakurScheduled Tribe.III. The documents quoted at Sr. No.7,8,9,10 and 11 are copies of SchoolRecords in respect of relatives of theapplicants wherein caste entries arerecorded as either Thakur or Hindu Thakur.In cases where synonymous entries are therele. Schedule Tribe synonymous with other,old documentary entry of caste has norelevance because the synonymous castewhich is not Schedule Tribe also show thesame entry even prior to PresidentialNotification. Therefore as per the settledprinciples of law laid down in the case ofMadhuri Patil, the test of characteristics,customs, ethnic linkage etc. plays vitalrole. Therefore in such cases only thedocumentary evidence cannot be relied upon.Hence on the basis of Vigilance CellReport, affinity test, these documents arenot sustainable.IV. The documents quoted at Sr. No. 12, 13,Page 15 of 21 WP-8039-2009 II.odt17 and 18 are the documents wherein casteentries are not recorded. Hence they are ofno use.V. The documents quoted at Sr. No. 14 and22 are copies of caste certificates inrespect of both the applicants. The castecertificates are always subject to scrutinyhence they cannot be relied upon.12.There is no challenge to the genealogy andadmittedly Gumansing Thakur is grandfather ofPetitioners. His school leaving certificate shows entry“Thakur”. This document indicates that as per Book No.13 & Pupil’s Register No. 145, he was admitted inschool on 25.07.1927. There is an affidavit sworn byBhimrao Gulabrao Thakur to indicate that ‘Gumansing’ &‘Gulabsingh’ is same person. In absence of any disputewith regard to blood relationship between concernedparties, we find no reason to discard the saidevidence, more particularly in view of the fact thatvalidity granted to the father of the Petitioner is onthe basis of same documents.13.The committee has also held that thePetitioners do not pass affinity test. Relying upon theenquiry conducted, it is observed that Petitioners arePage 16 of 21 WP-8039-2009 II.odtunaware about the traditions, customs, traits andrituals of Thakur Scheduled Tribe Community. Thecommittee has declined to consider certificate offather of Petitioners for the reason that there is aremark on the certificate that “this certificate isapplicable in this case”. There is further observationthat relatives of Petitioner reside at area which isnon Thakur Scheduled Tribe area. Similarly, objectionis raised with regard to impure language ofPetitioners.14.As far as affinity test is concerned, theHon’ble Supreme Court has held that “affinity test” isno litmus test. We find it appropriate to refer to thejudgment of of Hon’ble Supreme Court in case of AnandKatole (supra), wherein it is considered and held that“with migration, modernisation and contact with othercommunities, there communities tend to develop andadopt new traits, which may not essentially match withcharacteristic of tribe”. Petitioners herein have alsoprovided explanation to that effect about the languageetc. before Committee. We do not see any reason toaccept decision of Committee to keep validityPage 17 of 21 WP-8039-2009 II.odtcertificate of father of Petitioners out ofconsideration on the ground of the remark made thereon.We, therefore, find it difficult to convince ourselveswith regard to the legality and sustainability of theimpugned orders passed by the Scrutiny Committee.15.One more fact which prevents us from lendingour approval to the impugned orders is thatundisputedly father of the Petitioners is granted TribeValidity Certificate and the same has not beencancelled till date nor any show cause notice has beenissued to him for the said purpose. Non granting ofTribe Validity to the Petitioners would lead to theanomalous situation that father belongs to Thakurscheduled tribe category and the daughters do notbelong to the same tribe. Apart from this, there is onemore tribe validity in the family by virtue of validityin favour of Vishal i.e., paternal cousin brother ofthe Petitioners. There is no allegation against eitherfather or paternal cousin of the Petitioner ofobtaining those certificates by playing fraud ormisrepresentation etc. In such situation, there is noquestion of any action being taken against them ofPage 18 of 21 WP-8039-2009 II.odtrevocation of the certificates on that ground.16.At this stage, we would like to refer to thejudgment in case of Apoorva d/o Vinay Nichale Vs.Divisional Caste Certificate Scrutiny Committee No.1Nagpur, [2010(6) Mh.L.J.401 : AIR 2010(6) Bom.R.21]observations as follows:9.In the present case, we find that thecommittee has disbelieved the petitioner'scase that she belongs to Kanjar Bhat aftercalling the school leaving certificate ofpetitioner's father and noticing that theoriginal caste written on it was "Thakur'and that was subsequently changed to KanjarBhat. The committee observed that the castehas been changed without complying with theprocedure prescribed by section 48(e) and132(3) of Mumbai Primary Education Act. Infact, the caste has been changed on thebasis of the affidavit. From the findingsof the committee it appears that thecommittee has observed that the change ofcaste has been done illegally. Obviously,the committee which decided the caste claimof the petitioner's sister did not hold thesame view, otherwise it would have refusedto grant validity. In the circumstances, weare of the view that the committee whichhas expressed a doubt about the validity ofcaste claim of the petitioner and hasdescribed it as a mistake in its order,ought not to have arrived at a differentconclusion. The matters pertaining tovalidity of caste have a great impact onthe candidate as well as on the futurePage 19 of 21 WP-8039-2009 II.odtgenerations in many matters varying frommarriage to education and enjoyment, andtherefore where a committee has given afinding about the validity of the caste ofa candidate another committee ought not torefuse the same status to a blood relativewho applies. A merely different view on thesame facts would not entitle the committeedealing with the subsequent caste claim toreject it. There is, however, no doubt asobserved by us earlier that if a committeeis of the view that the earlier certificateis obtained by fraud it would not be boundto follow the earlier caste validitycertificate and is entitled to refuse thecaste claim and also in addition initiateproceedings for cancellation of the earlierorder. In this view of the matter, we areof the view that the petition must succeed.Rule is made absolute in above terms. TheCaste Scrutiny Committee is directed tofurnish the caste validity certificate tothe petitioner.These observations perfectly apply to thepresent case.17.We would also like to refer to the judgment ofthe Hon’ble the Supreme Court in case of MaharashtraAdiwasi Thakur Jamat Swarakshan Samiti (supra), whereinit is held that unless the certificate is obtained byfraud or misrepresentation, etc. by the blood relativeof the Applicant, where the relationship pleaded by thePage 20 of 21 WP-8039-2009 II.odtApplicant is established, the Committee is not requiredto undertake the affinity test etc.18.In our view, having regard to the facts andcircumstances of the case and more particularlyconsidering the tribe validity being granted to thefather and paternal cousin of the Petitioners and thevalidity granted to them still subsists, we do not findany reason or justification to sustain the impugnedorders.19.In the result, both Writ Petitions are allowedin terms of prayer clause ‘B’. The impugned orders arequashed and set aside. The Scrutiny Committee isdirected to issue Thakur Scheduled Tribe certificatesto both Petitioners, within 30 days from today.20.Rule is made absolute in the above terms.(R. M. JOSHI, J) (RAVINDRA V. GHUGE, J)MalaniPage 21 of 21