REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6340 OF 2004

ANAND —APPELLANT

VERSUS

COMMITTEE FOR SCRUTINY &

VERIFICATION OF TRIBE CLAIMS & ORS.

—RESPONDENTS

JUDGMENT

D.K. JAIN, J.:

1.This appeal is directed against the judgment of the High Court of

Judicature at Bombay, Nagpur Bench, delivered on 5

th

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 2

nd

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.

2.Succinctly 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 16

th

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 2

nd

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.

3.In 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 8

th

April,

2

1929; a copy of school leaving certificate dated 6

th

July, 1955, issued

to his father, Nilkantha Maruti Katole; a caste certificate issued to his

father on 19

th

June, 1969; copies of the school leaving certificates

issued to the appellant on 8

th

May, 1978, 5

th

July, 1988 and 9

th

August,

1983; a college leaving certificate dated 9

th

July, 1990 and a copy of

school leaving certificate issued to the real brother of his grandfather

on 21

st

June, 1933 etc. All these documents recorded the Caste of

those persons as ‘Halbi’.

4.Not 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

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showed that as on 13

th

June, 1958 and 1

st

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.

5.A 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 20

th

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:-

“B.The 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

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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 xxxxxxxxxx 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.”

6.It 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.

7.Being 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 Scheduled Tribe. The Research Officer and Member of

the Caste Scrutiny Committee interviewed the petitioner on

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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.”

8.Thus, 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.

9.Hence the present appeal.

10.Assailing 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

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these documents and by solely applying the affinity test. Drawing

support from the decision of this Court in Sayanna Vs. State of

Maharashtra & Ors.

1

, 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.

2

.

11.Per 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 268

2

(1996) 3 SCC 685

3

(1994) 6 SCC 241

7

Cell’s report, which took into account the ethnological perspective, the

impugned judgment cannot be faulted with.

12.Thus, the question that falls for consideration is what parameters are

to be applied in determining whether an applicant belongs to a notified

Scheduled Tribe?

13.Article 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”.

8

14.In 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:

“The anthropological 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.”

9

15.Again 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.

16.In 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 Act’). 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

10

Scrutiny Committee has to be as per the procedure prescribed in the

Rules.

17.Rule 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. The rules further 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

11

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.”

18.It 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

12

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

13

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. Nevertheless, the 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.

19.Needless 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

14

Committee cannot gather evidence on its own to prove or disprove his

claim.

20.Having 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

15

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.

21.Resultantly, 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 broad guidelines.

22.However, the parties are left to bear their own costs.

16

………………………………….J.

(D.K. JAIN)

………………………………….J.

(ASOK KUMAR GANGULY)

NEW DELHI;

NOVEMBER 8, 2011.

ARS

17