Anand Vs. Committee for
Scrutiny & Verification of Tribe Claims & Ors.
D.K. JAIN, J.:
appeal is directed against the judgment of the High Court of Judicature at
Bombay, Nagpur Bench, delivered on 5th May 2004, in W.P. No.1687 of 2004. By
the impugned judgment, the High Court has affirmed the order passed by the Committee
for Scrutiny and Verification of Tribe Claims, Amravati, (for short "the
Caste Scrutiny Committee"), respondent No.1 in this appeal, cancelling the
caste certificate dated 2nd January, 2002, issued to the appellant by the Sub-Divisional
Magistrate, Pusad, District Yavatmal, certifying that the appellant belongs to
the `Halbi' Scheduled tribe, notified in terms of the Constitution (Scheduled
Tribes) Order, 1950.
put, the material facts giving rise to the present appeal are as follows: The
appellant, who holds a degree of Bachelor of Engineering (BE), was appointed as
a field officer by the Maharashtra Pollution Control Board, respondent No.2 herein,
against a post reserved for "Scheduled Tribe", on probation with
effect from 16th March, 1998.
The appointment was
subject to production of the Caste Validity Certificate. On a failure to
produce the same, respondent No.2 issued a notice of termination of service to the
appellant. Aggrieved thereby, the appellant approached the High Court by way of
W.P. No. 4688 of 2003 inter alia, praying for a direction to respondent No.1 to
decide the caste claim of the appellant.
The High Court
allowed the writ petition and vide order dated 2nd December 2003, directed
respondent No.1 to decide the caste claim of the appellant within eight weeks
of the date of receipt of the copy of the order. Respondent No.2 was also
directed not to act upon the termination notice.
furtherance of the said order, the appellant made an application to the Caste Scrutiny
Committee under Rule 11 of the Maharashtra Scheduled Tribes (Regulation of Issuance
and Verification of) Certificate Rules, 2003 (for short "the Rules").
Along with the application, the appellant submitted several documents, including
a copy of his grandfather's school leaving certificate dated 8th April, 1929; a
copy of school leaving certificate dated 6th July, 1955, issued to his father,
Katole; a caste certificate issued to his father on 19th June, 1969; copies of the
school leaving certificates issued to the appellant on 8th May, 1978, 5th July,
1988 and 9th August, 1983; a college leaving certificate dated 9th July, 1990
and a copy of school leaving certificate issued to the real brother of his
grandfather on 21st June, 1933 etc. All these documents recorded the Caste of those
persons as `Halbi'.
being satisfied with the documentary evidence produced by the appellant, the
Caste Scrutiny Committee forwarded the application to the Vigilance Cell in
terms of Rule 12(2) of the Rules for conducting school, home and other enquiry.
The Vigilance Officer interviewed the appellant, collected information about the
characteristics of his caste, which included information in relation to his
family's ancestral profession; mother tongue; family idols and deities etc. and
also verified the school records of his relatives.
On the basis of the information
so collected, the Vigilance Officer submitted its report inter alia, reporting that
the characteristics, as noticed during enquiry did not resemble that of `Halbi'
Scheduled Tribe. In so far as the documentary evidence was concerned, referring
to the school record of the maternal brother of his father and aunt of the
appellant, which showed that as on 13th June, 1958 and 1st June, 1953, their
caste was recorded as `Koshti (which is scored off) Halba' (Koshti), the Vigilance
Officer submitted a report unfavourable to the appellant. The Vigilance Cell
found that the appellant was a member of `Halbi' sub-caste of the `Koshti' caste
but does not belong to `Halbi' Scheduled Tribe.
copy of the report of Vigilance Cell was supplied to the appellant by the Caste
Scrutiny Committee and personal hearing was also granted. By order dated 20th
March, 2004, the Caste Scrutiny Committee came to the conclusion that the appellant
does not belong to `Halbi' Scheduled Tribe. The caste certificate issued by the
Competent Authority, viz. the Sub-Divisional Magistrate, Pusad, Distt.
Yavatmal, was thus, cancelled and confiscated by the Caste Scrutiny Committee, inter
alia observing as follows:-
documents quoted at Sr. No. 2, 4, 5, 6, 13, 26, 28 & 33 are school records
in respect of relative of the candidate in which Caste is recorded as Halbi. In
view of enquiry report, documents collected by enquiry office and affinity test
these documents are rejected.
G. The document
quoted at Sr. No.17,19,21, 22, 23, 24 & 34 are the Xerox copies of validity
certificates in respect of relatives of the candidate. The ratio of this
Validity Certificate cannot be given to the candidate because the concerned
person at that time may have deliberately suppressed to bring information now
found out by the Inquiry Officer. Thus where there is material suppression of
facts, ratio of such order cannot be applied to other. As directed by the Hon'ble
Supreme 4 Court, each and every case should be decided on its own. Hence in the
light of Vigilance Cell Report, this document is rejected. xxxxx xxxxx xxxxx
xxxxx xxxxx xxxxx
11. The candidate's
mother tongue is Marathi which is not so in Halbi, Scheduled Tribe. The Surnames
of relatives from their community are reported as Katole, Parate, Naike,
Dhakte, Sorate, Nandarwar, Kumbhare etc. These surnames are not associated with
the people belonging to Halbi, Scheduled Tribe. The information about family &
community deities do not resemble with Halbi, Scheduled Tribe. The marital
ceremonies, ceremonies observed after birth, rites performed after death, customary
dances, great personalities within their community etc. as stated do not resemble
with that of Halbi, Scheduled Tribe. Thus, in view of this information, candidate
failed to establish his affinity towards Halbi Scheduled Tribe."
is manifest that the claim of the appellant was rejected mainly on the ground that
he had failed to establish his affinity towards `Halbi' Scheduled Tribe.
aggrieved with the said order, the appellant once again approached the High
Court by preferring W.P. No.1687 of 2004. As aforesaid, the High Court vide
impugned judgment upheld the order of Caste Scrutiny Committee, observing thus
"In so far as
the documents are concerned, it is true that most of the documents on which
reliance is placed by the petitioner do (sic) state the caste as Halbi but that
by itself is not sufficient to uphold the caste claim of the petitioner unless
the petitioner is able to establish his ethnic linkage with the so-called
The Research Officer
and Member of the Caste Scrutiny Committee interviewed the petitioner on these
aspects and it was found that the petitioner was not able to satisfy the
Scrutiny Committee on this aspect of the matter. The particulars furnished by the
petitioner claiming to be belonging to caste Halbi Scheduled Tribe do not match
with the characteristics, traits, customs, ethnic linkage on anthropological enquiry
into the caste status of the petitioner.
Therefore, though the
petitioner is in possession of certain documents even of prior to the Presidential
notification showing the caste claim of his relatives as Halbi, the same are not
enough to certify him as belonging to caste Halbi Scheduled Tribe. In the order,
it has been observed by the Scrutiny Committee that in some parts of Vidarbha the
old M.P. Region, in old records the Sub Caste Halbi of the caste Koshti is recorded
as Halbi which is popularly known as Halba Koshti and, therefore, this cannot
be treated as such."
according to the High Court also, unless an applicant establishes his ethnic
linkage with a Scheduled Tribe, his caste claim cannot be accepted merely on
the strength of documentary evidence.
the present appeal.
the impugned judgment, Mr. V.A. Mohta, learned senior counsel, appearing on
behalf of the appellant, strenuously contended that the report of the Vigilance
Cell, on which the Caste Scrutiny Committee had placed heavy reliance, was
vitiated because they failed to take into consideration the vital documents,
which included school leaving certificate relating to appellant's grand-father issued
in the year 1929. According to the learned counsel, these documents clearly show
that the appellant belongs to the Scheduled Tribe `Halbi'.
It was urged that the
High Court also fell into the same error by ignoring these documents and by solely
applying the affinity test. Drawing support from the decision of this Court in Sayanna
Vs. State of Maharashtra & Ors., learned counsel submitted that in the
light of the documents showing that all the close relatives of the appellant were
treated as belonging to `Halbi' Scheduled Tribe, appellant's claim could not be
negatived on the sole ground that he did not possess the basic characteristics,
knowledge of customs and culture of the said tribe.
In aid of the
proposition that probative value of all the documents ought to have been taken
into consideration by the Caste Scrutiny Committee as also the High Court,
reliance was placed on the decision of this Court in Gayatrilaxmi Bapurao
Nagpure Vs. State of Maharashtra & Ors.
contra, learned counsel appearing on behalf of the Caste Scrutiny Committee,
supporting the decision of the High Court, submitted that in the light of the
dictum of this Court in Kumari Madhuri Patil & Anr. Vs. Addl. Commissioner,
Tribal Development & Ors.3, neither the Caste Scrutiny Committee nor the
High Court committed any error or illegality in relying upon the affinity test
for invalidating the claim of the appellant.
It was asserted that
having regard to the findings by the Caste Scrutiny Committee, which in turn,
were based on Vigilance 1 (2009) 10 SCC 2682 (1996) 3 SCC 6853 (1994) 6 SCC 241
Cell's report, which took into account the ethnological perspective, the impugned
judgment cannot be faulted with.
the question that falls for consideration is what parameters are to be applied
in determining whether an applicant belongs to a notified Scheduled Tribe?
342 of the Constitution of India empowers the President of India to specify the
tribes or tribal communities or parts or groups within them which shall for the
purposes of the Constitution be deemed to be Scheduled Tribes in relation to a State
or a Union Territory, as the case may be. Under clause (2) of Article 342, the power
to include in or exclude from the lists of Scheduled Tribes specified in a
notification, issued under clause (1) of Article 342 of the Constitution, vests
in the Parliament.
In exercise of the powers
conferred by Article 342 of the Constitution, the President issued an order, called
the Constitution (Scheduled Tribes) Order, 1950. This was followed by the Scheduled
Castes and Scheduled Tribes Order (Amendment) Act, 1956. In the year 1976, the
Parliament enacted the Scheduled Castes and Scheduled Tribes Order (Amendment) Act,
1976. Part IX of the Third Schedule to the Amending Act specifies Scheduled
Tribes for the State of Maharashtra. One of the Scheduled Tribes so specified
therein is "Halba", "Halbi".
Kumari Madhuri Patil (supra), this Court took note of the fact that the benefit
of reservation of seats in educational institutions, and other appointments
were being denied to the genuine tribals on the basis of false caste
certificates. Terming such caste claims as "pseudo status", the Court
observed that spurious tribes had become a threat to the genuine tribals.
Emphasising the need to
ensure that the benefit of reservation must be made available only to genuine persons,
who belong to the notified caste or tribe, the Court said that such claims should
be judged on legal and ethnological basis. Highlighting the relevance of affinity
test while considering a caste claim, the Court observed thus:
moorings and ethnological kinship affirmity (sic) gets genetically ingrained in
the blood and no one would shake off from past, in particular, when one is conscious
of the need of preserving its relevance to seek the status of Scheduled Tribe
or Scheduled Caste recognised by the Constitution for their upliftment in the Society.
The ingrained Tribal traits peculiar to each tribe and anthropological features
all the more become relevant when the social status is in acute controversy and
needs a decision.
The correct projectives
furnished in pro forma and the material would lend credence and give an assurance
to properly consider the claims of the social status and the officer or authority
concerned would get an opportunity to test the claim for social status of
particular caste or tribe or tribal community or group or part of such caste, tribe
or tribal community. It or he would reach a satisfactory conclusion on the
claimed social status."
in Director of Tribal Welfare, Government of A.P. Vs. Laveti Giri & Anr.4, while
reiterating the guidelines laid down in Kumari Madhuri Patil (supra), this
Court observed that it was high time that the Government of India should have
the matter examined in greater detail and bring about a uniform legislation
with necessary guidelines and rules prescribing penal consequences on persons who
flout the Constitution and corner the benefits reserved for the real tribals,
etc., so that the menace of fabricating records to gain unconstitutional advantages
could be prevented.
the light of the aforesaid observations, the State of Maharashtra enacted the Maharashtra
Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act, 2000 (for short "the
The Act made statutory
provisions for verification and scrutiny of caste claims by the Competent Authority
and subsequently by the Caste Scrutiny Committee. In exercise of its rule
making power under the Act, the State notified the Rules laying down a complete
procedure for obtaining and verification of Scheduled Tribes Certificate. Therefore,
insofar as the State of Maharashtra is concerned, the verification and grant and/or
rejection of Scheduled Tribe Certificate by the Caste 4 (1995) 4 SCC 32 Scrutiny
Committee has to be as per the procedure prescribed in the Rules.
11(2) enumerates a list of documents to be filed along with the application to
the Caste Scrutiny Committee. Rule 12 prescribes the procedure to be followed
by the Caste Scrutiny Committee on receipt of such application in the prescribed
format. It provides that if the Caste Scrutiny Committee is not satisfied with the
documentary evidence produced by the applicant, it shall forward the
application to the Vigilance Cell for conducting the school, home and other
enquiry. Sub-rule (3) of Rule 12 requires the Vigilance Officer to visit the
local place of residence and the original place from where the applicant hails
and usually resides.
stipulate that the Vigilance Officer shall personally verify and collect all
the facts about the social status claimed by the applicant or his parents or
guardians, as the case may be. He is also required to examine the parents or
the guardians or the applicant for the purpose of verification of their tribe. It
is evident that the scope of enquiry by the Vigilance Officer is broad-based
and is not confined only to the verification of documents filed by the applicant
with the application or the disclosures made therein.
Obviously, the enquiry,
supposed to be conducted by the Vigilance Officer, would include the affinity
test of the applicant to a particular tribe to which he claims to belong. In
other words, an enquiry into the kinship and affinity of the applicant to a
particular Scheduled Tribe is not alien to the scheme of the Act and the Rules.
In fact, it is relevant and germane to the determination of social status of an
applicant. We are of the view that for the purpose of examining the caste claim
under the Rules, the following observations of this Court in Kumari Madhuri
Patil (supra), still hold the field:-"...
The vigilance officer
should personally verify and collect all the facts of the social status claimed
by the candidate or the parent or guardian, as the case may be. He should also examine
the school records, birth registration, if any. He should also examine the parent,
guardian or the candidate in relation to their caste etc. or such other persons
who have knowledge of the social status of the candidate and then submit a report
to the Directorate together with all particulars as envisaged in the pro forma,
in particular, of the Scheduled Tribes relating to their peculiar
anthropological and ethnological traits, deity, rituals, customs, mode of marriage,
death ceremonies, method of burial of dead bodies etc. by the castes or tribes
or tribal communities concerned etc."
is manifest from the afore-extracted paragraph that the genuineness of a caste claim
has to be considered not only on a thorough examination of the documents submitted
in support of the claim but also on the affinity test, which would include the
anthropological and ethnological traits etc., of the applicant. However, it is
neither feasible nor desirable to lay down an absolute rule, which could be applied
mechanically to examine a caste claim.
Nevertheless, we feel
that the following broad parameters could be kept in view while dealing with a
caste claim: (i) While dealing with documentary evidence, greater reliance may be
placed on pre-Independence documents because they furnish a higher degree of probative
value to the declaration of status of a caste, as compared to post-Independence
documents. In case the applicant is the first generation ever to attend school,
the availability of any documentary evidence becomes difficult, but that ipso facto
does not call for the rejection of his claim.
In fact the mere fact
that he is the first generation ever to attend school, some benefit of doubt in
favour of the applicant may be given. Needless to add that in the event of a doubt
on the credibility of a document, its veracity has to be tested on the basis of
oral evidence, for which an opportunity has to be afforded to the applicant; (ii)
While applying the affinity test, which focuses on the ethnological connections
with the scheduled tribe, a cautious approach has to be adopted.
A few decades ago, when
the tribes were somewhat immune to the cultural development happening around
them, the affinity test could serve as a determinative factor. However, with
the migrations, modernisation and contact with other communities, these communities
tend to develop and adopt new traits which may not essentially match with the traditional
characteristics of the tribe. Hence, affinity test may not be regarded as a
litmus test for establishing the link of the applicant with a Scheduled Tribe.
claim by an applicant that he is a part of a scheduled tribe and is entitled to
the benefit extended to that tribe, cannot per se be disregarded on the ground
that his present traits do not match his tribes' peculiar anthropological and ethnological
traits, deity, rituals, customs, mode of marriage, death ceremonies, method of
burial of dead bodies etc. Thus, the affinity test may be used to corroborate the
documentary evidence and should not be the sole criteria to reject a claim.
to add that the burden of proving the caste claim is upon the applicant. He has
to produce all the requisite documents in support of his claim. The Caste
Scrutiny Committee merely performs the role of verification of the claim and therefore,
can only scrutinise the documents and material produced by the applicant. In case,
the material produced by the applicant does not prove his claim, the Committee
cannot gather evidence on its own to prove or disprove his claim.
examined the present case on the touchstone of the aforesaid broad parameters,
we are of the opinion that the claim of the appellant has not been examined properly.
We feel that the documentary evidence produced by the appellant in support of
his claim had been lightly brushed aside by the Vigilance Officer as also by the
Caste Scrutiny Committee. Insofar as the High Court is concerned, it has rejected
the claim solely on the basis of the affinity test.
It is pertinent to note
that some of these documents date back to the pre-Independence era, issued to appellant's
grandfather and thus, hold great probative value as there can be no reason for
suppression of facts to claim a non-existent benefit to the `Halbi' Scheduled
Tribe at that point of time. From the documents produced by the appellant, it appears
that his near paternal relatives had been regarded as belonging to the `Halbi' Scheduled
Tribe. The Vigilance Officer's report does not indicate that the documents
produced by the appellant in support of his claim are false.
It merely refers to
the comments made by the Head Master with reference to the school records of appellant's
father's maternal brother and his aunt, which had been alleged to be tampered
with, to change the entry from Koshti Halba to Halba and nothing more. Neither
the Head Master was examined, nor any further enquiry was conducted to verify the
veracity of Head Master's statement. It is of some importance to note at this juncture
that in similar cases, involving appellant's first cousin and his paternal
uncle, the High Court, while observing non-application of mind by the Caste Scrutiny
Committee, had decided a similar claim in their favour.
We are convinced that
the documentary evidence produced by the appellant was not examined and
appreciated in its proper perspective and the High Court laid undue stress on the
affinity test. Thus, the decision of the Caste Scrutiny Committee to cancel and
confiscate the caste certificate as well as the decision of the High Court,
affirming the said decision is untenable. We are, therefore, of the opinion
that the claim of the appellant deserves to be re-examined by the Caste Scrutiny
Committee. For the view we have taken on facts in hand, we deem it unnecessary
to refer to the decisions cited at the bar.
the appeal is allowed; the decisions of Caste Scrutiny Committee and the High
Court are set aside and the case is remitted back to the Caste Scrutiny Committee
for fresh consideration in accordance with the relevant rules and the aforesaid
the parties are left to bear their own costs.
(ASOK KUMAR GANGULY)