The case was first filed in the Bombay High Court, as it involved a challenge to a Full Bench decision of the Bombay High Court. The matter was later referred ...
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2502 OF 2022
MAH. ADIWASI THAKUR JAMAT
SWARAKSHAN SAMITI …APPELLANT(S)
v.
THE STATE OF MAHARASHTRA & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 2772 OF 2022
CIVIL APPEAL NOs. 25362537 OF 2022
CIVIL APPEAL NO. 2533 OF 2022
CIVIL APPEAL NO. 2532 OF 2022
CIVIL APPEAL NO. 2534 OF 2022
CIVIL APPEAL NO. 2518 OF 2022
CIVIL APPEAL NO. 2517 OF 2022
CIVIL APPEAL NO. 2525 OF 2022
CIVIL APPEAL NO. 2520 OF 2022
CIVIL APPEAL NO. 2527 OF 2022
CIVIL APPEAL NO. 2526 OF 2022
CIVIL APPEAL NO. 2538 OF 2022
CIVIL APPEAL NO. 2541 OF 2022
CIVIL APPEAL NO. 2535 OF 2022
CIVIL APPEAL NO. 2546 OF 2022
CIVIL APPEAL NOs. 39223923 OF 2019
CIVIL APPEAL NOs. 25442545 OF 2022
CIVIL APPEAL NO. 2512 OF 2022
CIVIL APPEAL NO. 2543 OF 2022
CIVIL APPEAL NO. 2542 OF 2022
CIVIL APPEAL NO. 2529 OF 2022
CIVIL APPEAL NO. 2540 OF 2022
CIVIL APPEAL NO. 2539 OF 2022
CIVIL APPEAL NO. 2503 OF 2022
1
CIVIL APPEAL NO. 2514 OF 2022
CIVIL APPEAL NO. 2519 OF 2022
CIVIL APPEAL NO. 2524 OF 2022
CIVIL APPEAL NO. 2510 OF 2022
CIVIL APPEAL NO. 2506 OF 2022
CIVIL APPEAL NO. 2509 OF 2022
CIVIL APPEAL NO. 2508 OF 2022
CIVIL APPEAL NO. 2507 OF 2022
CIVIL APPEAL NO. 8603 OF 2010
CIVIL APPEAL NO. 8605 OF 2010
CIVIL APPEAL NO. 2504 OF 2022
CIVIL APPEAL NO. 2505 OF 2022
CIVIL APPEAL NO. 2511 OF 2022
CIVIL APPEAL NO. 2530 OF 2022
CIVIL APPEAL NO. 2522 OF 2022
CIVIL APPEAL NO. 2516 OF 2022
CIVIL APPEAL NO. 2521 OF 2022
CIVIL APPEAL NO. 2531 OF 2022
CIVIL APPEAL NO. 2523 OF 2022
CIVIL APPEAL NO. 2528 OF 2022
CIVIL APPEAL NO. 2513 OF 2022
CIVIL APPEAL NO. 9335 OF 2013
AND
CIVIL APPEAL NO. 2515 OF 2022
J U D G M E N T
ABHAY S. OKA, J.
PRELUDE
1.Pursuant to Article 342 of the Constitution of India, a list of
Scheduled Tribes was notified by the Constitution (Scheduled
Tribes) Order, 1950 (for short ‘the ST Order’). By an Act of
2
Parliament of 1976, the ST Order was amended. Part IX of the Third
Schedule to the 1976 Act contains a list of notified Scheduled Tribes
for the State of Maharashtra. At Entry no.44 in the Maharashtra
List, the following castes have been notified as Scheduled Tribes:
“Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur,
Ma Thakar”.
2.Various issues concerning the procedure to be followed for the
determination of caste claims arose in a large number of cases. In
the case of Kumari Madhuri Patil and Another v.
Addl.Commissioner, Tribal Development & Others
1
, this Court
noted that it was necessary to streamline the procedure for issuance
of social status certificates, their scrutiny and their approval. The
need to lay down procedural guidelines was felt as several cases
were noticed where candidates on the basis of false social status
certificates obtained admissions to educational institutions which
necessarily had the effect of depriving admissions to genuine
candidates belonging to Scheduled Castes or Scheduled Tribes.
There was no law in force at that time laying down the procedure for
1 (1994) 6 SCC 241
3
the verification of caste status. Therefore, very exhaustive
guidelines were laid down in paragraph 13 of the said decision. The
relevant part of Paragraph 13 of the said decision reads thus:
“13. The admission wrongly gained or
appointment wrongly obtained on the basis of
false social status certificate necessarily has the
effect of depriving the genuine Scheduled Castes
or Scheduled Tribes or OBC candidates as
enjoined in the Constitution of the benefits
conferred on them by the Constitution. The
genuine candidates are also denied admission to
educational institutions or appointments to office
or posts under a State for want of social status
certificate. The ineligible or spurious persons
who falsely gained entry resort to dilatory tactics
and create hurdles in completion of the inquiries
by the Scrutiny Committee. It is true that the
applications for admission to educational
institutions are generally made by a parent, since
on that date many a time the student may be a
minor. It is the parent or the guardian who may
play fraud claiming false status certificate. It is,
therefore, necessary that the certificates issued
are scrutinised at the earliest and with utmost
expedition and promptitude. For that purpose,
it is necessary to streamline the procedure for
the issuance of social status certificates, their
scrutiny and their approval, which may be the
following:
1. The application for grant of social status
certificate shall be made to the Revenue Sub
Divisional Officer and Deputy Collector or Deputy
Commissioner and the certificate shall be issued
4
by such officer rather than at the Officer, Taluk
or Mandal level.
2. The parent, guardian or the candidate, as the
case may be, shall file an affidavit duly sworn
and attested by a competent gazetted officer or
nongazetted officer with particulars of castes
and subcastes, tribe, tribal community, parts or
groups of tribes or tribal communities, the place
from which he originally hails from and other
particulars as may be prescribed by the
Directorate concerned.
3. Application for verification of the caste
certificate by the Scrutiny Committee shall be
filed at least six months in advance before
seeking admission into educational institution or
an appointment to a post.
4. All the State Governments shall constitute a
Committee of three officers, namely, (I) an
Additional or Joint Secretary or any officer high
er in rank of the Director of the department
concerned, (II) the Director, Social Welfare/Tribal
Welfare/Backward Class Welfare, as the case
may be, and (III) in the case of Scheduled Castes
another officer who has intimate knowledge in
the verification and issuance of the social status
certificates. In the case of the Scheduled Tribes,
the Research Officer who has intimate knowledge
in identifying the tribes, tribal communities,
parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a
Vigilance Cell consisting of Senior Deputy
Superintendent of Police in overall charge
and such number of Police Inspectors to
5
investigate into the social status claims. The
Inspector would go to the local place of residence
and original place from which the candidate hails
and usually resides or in case of migration to the
town or city, the place from which he originally
hailed from. 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.
6. The Director concerned, on receipt of the
report from the vigilance officer if he found the
claim for social status to be “not genuine” or
‘doubtful’ or spurious or falsely or wrongly
claimed, the Director concerned should issue
showcause notice supplying a copy of the report
of the vigilance officer to the candidate by a
registered post with acknowledgement due or
through the head of the educational institution
concerned in which the candidate is studying or
employed. The notice should indicate that the
representation or reply, if any, would be made
within two weeks from the date of the receipt of
6
the notice and in no case on request not more
than 30 days from the date of the receipt of the
notice. In case, the candidate seeks for an
opportunity of hearing and claims an inquiry to
be made in that behalf, the Director on receipt of
such representation/reply shall convene the
committee and the Joint/Additional Secretary as
Chairperson who shall give reasonable
opportunity to the candidate/parent/guardian to
adduce all evidence in support of their claim. A
public notice by beat of drum or any other
convenient mode may be published in the village
or locality and if any person or association
opposes such a claim, an opportunity to adduce
evidence may be given to him/it. After giving
such opportunity either in person or through
counsel, the Committee may make such inquiry
as it deems expedient and consider the claims
vis
àvis the objections raised by the candidate or
opponent and pass an appropriate order with
brief reasons in support thereof.
7. In case the report is in favour of the candidate
and found to be genuine and true, no further
action need be taken except where the report or
the particulars given are procured or found to be
false or fraudulently obtained and in the latter
event the same procedure as is envisaged in para
6 be followed.
8. Notice contemplated in para 6 should be
issued to the parents/guardian also in case
candidate is minor to appear before the
Committee with all evidence in his or their
support of the claim for the social status
certificates.
9. ……………….
7
10. ……………..
11. The order passed by the Committee shall be
final and conclusive only subject to the
proceedings under Article 226 of the
Constitution.
12. No suit or other proceedings before any other
authority should lie.”
(emphasis added)
3.The aforesaid guidelines were formulated obviously in the
exercise of jurisdiction under Article 142 of the Constitution as this
Court found that there was no legislation operating in the field. So
far as the State of Maharashtra is concerned, with effect from 18
th
October 2001, the Maharashtra Scheduled Castes, Scheduled
Tribes, Denotified 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 2000 Act’) was brought into force. The 2000 Act contains a very
elaborate mechanism for regulating the issue and verification of
caste certificates to persons belonging to various categories of
backward classes. A twolevel mechanism was provided. The first
level is of the Competent Authority issuing a caste certificate which
8
is valid only subject to verification and grant of validity certificate by
the Scrutiny Committee constituted under the 2000 Act. Power is
vested in the Scrutiny Committee constituted under Section 6 to
verify the correctness of the caste certificates issued by the
Competent Authority. Section 9 confers powers on the Competent
Authority and the Scrutiny Committee of a civil court of summoning
and enforcing the attendance of witnesses, requiring the discovery
and inspection of documents, receiving evidence on affidavits,
requisitioning any public record or a copy thereof from any Court or
office and issuing Commissions for the examination of witnesses or
production of documents. Rulemaking power under the 2000 Act
was exercised by framing the Maharashtra Scheduled Tribes
(Regulation of Issuance and verification of) Certificate Rules, 2003
(for short “the ST Rules”). Similarly, the Maharashtra Scheduled
Castes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Rules, 2012 (for short
‘the SC Rules’) were framed. Elaborate provisions for the
constitution of the Scrutiny Committee as well as the procedure to
9
be followed by the Competent Authority, and the Scrutiny
Committee have been laid down by the Rules applicable to both
categories. Rule 10 and Rule 12 of the ST Rules provide for the
constitution of Vigilance Cells to assist the Scrutiny Committees for
Scheduled Castes and Scheduled Tribes respectively for conducting
an enquiry. The Vigilance Cell established under ST Rules consists
of a Senior Deputy Superintendent of Police, Police Inspectors,
Police Constables to assist the Police Inspector and a Research
Officer. The SC Rules specifically provide for the Vigilance Cell to
conduct affinity test. There is some controversy about whether the
vigilance cell constituted under the ST Rules has a power to conduct
affinity test. We are dealing with the said issue. The Vigilance Cell
is required to enquire about anthropological and ethnological traits,
deities, rituals, customs, mode of marriage, death ceremonies,
method of disposal of dead bodies etc. by the castes or tribes or
tribal communities concerned. As a part of the affinity test, a
candidate who has obtained a caste certificate from Competent
Authority is tested to ascertain whether he has knowledge about the
aforesaid factors pertaining to the particular caste/tribe.
10
CONTROVERSY
4.By the order dated 24
th
March 2022, the present group of
cases was referred to a larger Bench. The challenge in the lead case
(Civil Appeal No. 2502 of 2022) is to a decision of a Full Bench of
the Bombay High Court in the case of Shilpa Vishnu Thakur v.
State of Maharashtra
2
. The Full Bench of the Bombay High Court
has interpreted the provisions of the 2000 Act as well as ST Rules.
The impugned judgment discusses and lays down various
procedural aspects to be followed by the Scrutiny Committee. The
Full Bench of the Bombay High Court has held that the affinity test
is an integral part of the determination of the correctness of the
caste claim. In the order dated 24
th
March 2022, a Bench of this
Court noted that there was a conflict of views expressed in two
decisions of coordinate Benches of this Court. The first case is of
Vijakumar v. State of Maharashtra & Ors.
3
and the second case is
of Anand v. Committee for Scrutiny and Verification of Tribe
Claims & Ors.
4
. In paragraph 9 of the decision in the case of
2 2009 (3) Mh.LJ (F.B) 995
3 (2010) 14 SCC 489
4 (2012) 1 SCC 113
11
Vijakumar
3
, this Court held that if a candidate fails the affinity test
at any stage, a caste validity certificate cannot be granted to him. In
the case of Anand
4
, it was held that the affinity test is not the only
criteria for deciding a caste claim based on a caste certificate issued
by a Competent Authority. It was held that it can be used to
corroborate the documentary evidence. The question to be decided
is whether paramount importance should be given to the affinity
test while adjudicating upon a caste claim on the basis of a caste
certificate issued by a Competent Authority. In other words, the
question is whether the affinity test is a litmus test for deciding a
caste claim.
CONTENTIONS OF THE PARTIES
5.Main submissions have been made on behalf of the appellants
in Civil Appeal No. 2502 of 2022 by Shri Shekhar Naphade, learned
senior counsel. He has taken us through the 2000 Act and ST
Rules. Relying upon the decision in the case of Kumari Madhuri
Patil
1
, he urged that the documents which pertain to the pre
Constitution period have the greatest probative value. He submits
12
that if such documents in support of caste claim are presented
before the Scrutiny Committee, and if the same are found to be
relevant and genuine, there is no occasion for the Scrutiny
Committee to order an enquiry through Vigilance Cell. Similarly, if
blood relatives of the person applying for verification before the
Caste Scrutiny Committee have been granted caste validity
certificates, no further enquiry by the Scrutiny Committee is called
for. In both cases, it is the duty of the Caste Scrutiny Committee to
validate the caste certificate. He invited our attention to Rule 12 of
the ST Rules which lays down the procedure to be followed by the
Scrutiny Committee. He pointed out that subrule (2) provides that
only if Scrutiny Committee is not satisfied with the documentary
evidence produced by the applicant, it can order enquiry through
Vigilance Cell. He pointed out that the question of the conduct of
the affinity test arises only after the case is forwarded to the
Vigilance Cell after the Scrutiny Committee comes to the conclusion
that the documents produced by the applicant are not sufficient to
prove the caste claim. He submitted that the Scrutiny Committee
could not mechanically refer a case to the Vigilance Cell without
13
recording satisfaction that the documents produced by the
applicant were not sufficient to validate the caste claim.
6.He relied upon a decision of the Bombay High Court in the
case of Apoorva d/o Vinay Nichale v. Divisional Committee
5
. He
submitted that if an applicant successfully establishes his caste
claim on the basis of documents relating to the preConstitution
period or documents having probative value or a caste validity
certificate granted to his blood relative, it is not necessary to apply
the affinity test. In short, his submission is that the affinity test is
not a litmus test. He submitted that the view taken by this Court in
the case of Anand
4
is based on the interpretation of the 2000 Act
and the ST Rules. He pointed out that Vijakumar’s
3
case has been
decided by this Court before the ST Rules came into force. He would
urge that there are no reasons recorded in the decision to suggest
that the affinity test in every case is mandatory. The learned
counsel pressed into service a decision of this Court in the case of
District Collector, Satara & Anr. v. Mangesh Nivrutti Kashid
6
.
5 2010 (6) Mh.LJ page 401
6 (2019) 10 SCC 166
14
He pointed out that this Court clearly stated that Vigilance Cell’s
assistance is not required to be taken in every case but only when
the Scrutiny Committee is not satisfied with the documents
produced by the applicant. He also pointed out that an applicant
who is a member of a Scheduled Tribe and who has been staying in
an urban area may not be conversant with the traits,
characteristics, ceremonies, and deities of the tribe. Learned senior
counsel also relied upon a decision of the Bombay High Court in
Writ Petition No.4198 of 2005 dated 1
st
August 2018, which holds
that in view of the decision of this Court in the case of Anand
4
, the
impugned judgment in the case of Shilpa Vishnu Thakur
2
stands
impliedly overruled. He would, therefore, submit that the impugned
judgment calls for modification and it must be held that the affinity
test is not of paramount importance while deciding a caste claim in
accordance with the 2000 Act and the ST rules.
7.Smt. V. Mohna, learned senior counsel appearing in a
connected case heavily relied upon a decision of this Court in the
case of Palghat Jilla Thandan Samudhaya Samrakshna Samithi
15
& Anr. v. State of Kerala
7
. She submitted that the State
Government or Scrutiny Committee cannot hold any enquiry to
determine whether or not some particular community falls within
the ST order. She submitted that the State Government cannot
make an effort to indirectly modify the Third Schedule under the ST
Order as the modification can be carried out only in accordance
with Article 341 of the Constitution. Her submission is that in a
given case if the documents having probative value show that the
applicant belongs to the Thakur caste or belongs to any other caste
notified in the Third Schedule to the 1976 Act, there is no question
of holding any affinity test.
8.Shri Shyam Divan, the learned senior counsel appearing for
the State of Maharashtra pointed out that it is judicially recognised
that the surname Thakur is shared by both forward and backward
class communities. He placed reliance on the decision in the case of
State of Maharashtra & Ors. v. Ravi Prakash Babulalsing Parmar
& Anr.
8
He pointed out that even in the impugned judgment, this
7 (1994) 1 SCC 359
8 (2007) 1 SCC 80
16
factual aspect has been elaborately dealt with. He pointed out that
under the provisions of the 2000 Act, an inquiry is required to be
made at three stages. The first is an inquiry by a Competent
Authority for ascertaining the genuineness of the claim of the
applicant on the basis of documents produced by him. If prima
facie, the Competent Authority is satisfied with the documents, it
has to issue a caste certificate which is subject to verification. The
second stage is of domestic and school enquiry to be conducted by
Vigilance Cell which will include an affinity test and the third stage
is of verification and scrutiny by the Scrutiny Committee which is a
quasijudicial authority.
9.In the written submissions filed by him, he has contended that
even if validity certificates have been issued by the Scrutiny
Committee in case of near relatives of the applicant, the Scrutiny
Committee has to apply an affinity test as an integral part of the
process of assessing the entire evidence again to ensure that
illegality is not perpetuated. He submitted that there are cases
where a validity certificate is issued to a near relative by mistake or
17
fraud or without holding an enquiry as contemplated by law or
without recording any reasons. A submission is made that the
Scrutiny Committee can also go into the question whether the
earlier validity certificate has been issued based on an erroneous
order of the High Court. The submission canvassed is what is held
in paragraph 22.1 in the decision in Anand’s case
4
is erroneous.
10.It is submitted on behalf of the State Government that in a
given case, the applicant may not be fully conversant with the traits,
religious ceremonies of the tribe or deities etc. Therefore, the
Vigilance Cell is required to examine even the parents of the
applicant. The State Government urged that in the case of
Scheduled Tribe Thakur, a different test will apply as persons with
this surname belong even to forward classes. Therefore, in the case
of the tribe claim of Thakur, preConstitution documents containing
the candidate’s surname as Thakur are of no consequence.
Therefore, in the case of the tribe claim of Thakur, an affinity test
has to be applied. The submission of the State is that the view taken
in the case of Vijakumar
3
is correct and necessary clarifications will
18
have to be issued regarding findings rendered in the case of Anand
4
in paragraph 22.
11.Shri Ravi K. Deshpande, the learned senior counsel appearing
in one of the connected matters urged that the Scrutiny Committee
constituted under the 2000 Act is not a quasijudicial authority. He
submitted that in the case of Dayaram v. Sudhir Batham & Ors.
9
,
this Court held that Scrutiny Committee is not a quasijudicial
authority but it is an administrative authority. He also urged that
the decision in the case of Dayaram
9
has been followed by this
Court in the case of J. Chitra v. District Collector & Chairman,
State Level Vigilance Committee, Tamil Nadu & Ors.
10
He
submitted that the finding of the High Court that the affinity test is
an integral part of an enquiry by the Scrutiny Committee has no
legal basis at all. His submission is that Anand’s case
4
has been
correctly decided and to that extent, the impugned judgment in the
case of Shilpa Vishnu Thakur
2
will have to be modified. One of the
interveners also relied upon the provisions of the SC Rules and
9 (2012) 1 SCC 333
10 (2021) 9 SCC 811
19
submitted that though the same specifically empower the Vigilance
Cell to conduct affinity tests, such a provision is absent in the ST
Rules.
OUR VIEW
12.We have already made a reference in detail to the directions
issued by this Court in the case of Kumari Madhuri Patil
1
. A co
ordinate Bench in the case of Dayaram
9
, in paragraph 35 of its
decision, held that the directions issued by this Court in paragraph
13 of Kumari Madhuri Patil’s case
1
were issued as there was no
statute governing the field of verification of caste claims of
Scheduled Castes, Scheduled Tribes, Nomadic Tribes and Other
Backward Classes. Therefore, it was held that the directions issued
in the case of Kumari Madhuri Patil
1
would apply only until
appropriate legislation is enacted. Hence, after the 2000 Act came
into force, only the provisions of the said enactment will prevail.
20
13.Therefore, we will have to interpret the provisions of the 2000
Act. The 2000 Act came into force on 18
th
October 2001. As can be
noticed from the title, the 2000 Act deals with the regulation of
issuance and verification of caste certificates in respect of persons
belonging to Scheduled Tribes, Denotified tribes, Nomadic Tribes,
Other Backward Classes and Special Backward Category. Under
the scheme of the 2000 Act, an application for the grant of caste
certificates is to be made to the Competent Authority as defined
under Section 2(b). The Competent Authority is mandated to follow
the procedure prescribed by the Rules. After following the procedure
prescribed, if the Competent Authority is satisfied that the claim
made by the candidate is genuine, it can issue a caste certificate in
a prescribed form. Subsection (1) of Section 4, for good reasons,
specifically provides that if the application is rejected, the reasons
for the rejection must be recorded. As an order rejecting the
application for the grant of a caste certificate is made appealable
under subsection (1) of Section 5, the appellate authority should
have the benefit of the reasons for rejection.
21
14.Under Section 9, the Competent Authority, Appellate Authority
and Scrutiny Committee have been granted powers of Civil Court
under the Code of Civil Procedure, 1908 of summoning and
enforcing the attendance of any person and examining him on oath,
requiring the discovery and production of any documents, receiving
evidence on affidavits, requisitioning any public record or copy
thereof from any Court or office and issuing commissions for the
examination of witnesses or documents. However, the nature and
extent of the inquiry which is required to be made by the Competent
Authority and by the Scrutiny Committee differ. The 2000 Act has
introduced a twotier system for the verification of caste claims. In
view of the express language used by subsection (2) of Section 4,
the caste certificate issued by the Competent Authority does not
conclusively establish the caste claim of the applicant. The person
to whom the caste certificate is granted by the Competent Authority
cannot claim that his caste status has been established. The caste
certificate issued by Competent Authority becomes conclusive
evidence of the caste stated therein only after a detailed enquiry as
contemplated by the 2000 Act and rules framed thereunder is made
22
by the Scrutiny Committee and the certificate is validated.
Therefore, when an application made under Section 3 for the grant
of a caste certificate is considered by the Competent Authority, very
detailed scrutiny of material produced by the applicant is not
contemplated. What is contemplated is prima facie satisfaction of
the genuineness of the caste claim and on the basis of such
satisfaction that a caste certificate as contemplated by subsection
(1) of Section 4 can be issued. Therefore, subsection (1) of Section
4 specifically requires the Competent Authority to record reasons for
rejecting the application but there is no such requirement
incorporated of giving reasons while granting a caste certificate.
However, the Caste Scrutiny Committee is expected to record
reasons both for validating and not validating the caste certificate.
Subrule (6) of Rule 4 of the ST Rules provides that the Competent
Authority shall verify the documents produced by the applicant with
the original documents and if satisfied with the correctness of the
information, documents and evidence furnished by the applicant, it
shall issue a Scheduled Tribe certificate within 15 days from the
date of receipt of the application. The time limit fixed under the
23
said Rule is also a pointer which suggests that the enquiry to be
made by the Competent Authority is a summary enquiry and a
detailed enquiry is not contemplated. The mandate of issuing caste
certificates within 15 days cannot be accomplished if the Competent
Authority is to hold a detailed enquiry on par with the one which is
required to be held by the Scrutiny Committee.
15.The law contemplates very detailed scrutiny of the caste claim
by the Scrutiny Committee. If both the Competent Authority and
the Caste Scrutiny Committee were to make the same degree of
scrutiny and detailed enquiry into caste claims, the very object of
the twotier scrutiny will be frustrated. Section 8 provides that the
burden of proving a caste claim before the Competent Authority and
the Scrutiny Committee is on the applicant. For discharging the
said burden before the Competent Authority, it is enough if the
applicant produces prima facie material to show that his caste claim
is genuine. The burden put by Section 8 on the applicant to prove
his caste status before the Scrutiny Committee is much higher than
24
the burden which he is required to discharge before the Competent
Authority.
16.Subsection (1) of Section 10 contemplates that if an applicant,
on the basis of a caste certificate issued by the Competent Authority
obtains any benefit such as employment or admission to an
educational institution, on cancellation of the caste certificate by the
Scrutiny Committee, the admission secured to the educational
institution or employment is required to be cancelled forthwith. The
scheme of Section 10 is that applicant cannot hold on to any benefit
received by him on the basis of a caste certificate issued by the
Competent Authority which is subsequently cancelled by the
Scrutiny Committee.
17.Section 6 deals with the procedure to be followed by the Caste
Scrutiny Committee for verification of caste certificates. Subsection
(4) of Section 6 lays down that the Scrutiny Committee shall follow
the procedure as laid down by the Rules framed under the 2000 Act.
Rule 4 of the ST Rules lays down the procedure to be followed by the
Competent Authority. We must note that under Rule 10, a
25
provision has been made for constituting a Vigilance Cell to assist
the Scheduled Tribes Caste Scrutiny Committee in conducting an
enquiry. As noted earlier, the Vigilance Cell consists of Police
Officers of three different ranks as provided therein and a Research
Officer. Rule 11 provides details of the documents the applicant
must submit to verify the Scheduled Tribes certificate. Subrules 2
and 3 of Rule 11 read thus:
“11.(1)…………………….
(2)The applicant shall submit the following
documents with his application for
verification of his Scheduled Tribe
Certificate :—
(a)Original documents.—
(i)the original Scheduled Tribe
Certificate of the applicant alongwith
one attested copy,
(ii)an affidavit in Form F;
(b)Documents of which, only attested
copies are to be submitted in respect of
applicant—
(i)Primary School leaving
certificate.
(ii)An extract of school admission
register.
(iii) An extract of birth register.
26
(c)Documents in respect of father,—
(i)An extract of birth register.
(ii)Primary school leaving certificate.
(iii)Extract of school admission
register.
(iv)Scheduled Tribe Certificate.
(v)If a father is in service, the
extract of the pages of the service
record (book) which contain
religion and tribe entry.
(vi)If a father is illiterate, the
primary school leaving certificate
of the real elderly blood relatives
of the paternal side of the
applicant and extract of school
admission register.
(d)Other documents,—
(i)Revenue record like, birth
register, extract of 7/12, Sale
Deed etc.
(ii)Any other relevant documents
in support of his Scheduled
Tribe claim.
(iii)Affidavits of the near relatives
whose Validity Certificates are
submitted in support of the
Scheduled Tribe claim of the
applicant.
27
(3)The applicant shall submit original
certificates and documents for verification
whenever required by the Scrutiny
Committee.”
18.Rule 12 lays down the procedure to be followed by the Scrutiny
Committee. It contains a provision regarding forwarding a case to
the Vigilance Cell to hold an enquiry. Rule 12 reads thus:
“12. Procedure to be followed by Scrutiny
Committee.
(1) On receipt of the application, the Scrutiny
Committee or a person authorised by it shall
scrutinise the application, verify the information
and documents furnished by the applicant, and
shall acknowledge the receipt of the application.
The Member Secretary shall register the
application, received for verification, in theregister
prescribed by the Chairman.
(2) If the Scrutiny Committee is not satisfied
with the documentary evidence produced by the
applicant the Scrutiny Committee shall forward
the applications to the Vigilance Cell for
conducting the school, home and other enquiry.
(3)The Vigilance Officer shall go to the local
place of residence and original place from
which the applicant hails and usually resides, or
in case of migration, to the town or city or
place from which he originally hailed from.
28
(4)The Vigilance Officer shall personally verify
and collect all the facts about the social status
claimed by the applicant or his parents or the
guardian, as the case may be.
(5)The Vigilance Cell shall also examine the
parents or guardian or the applicant for the
purpose of verification of their Tribe, of the
applicant.
(6) After completion of the enquiry, the Vigilance
Cell shall submit its report to the Scrutiny
Committee who will in turn scrutinise the report
submitted by the Vigilance Cell.
(7)In case the report of Vigilance Cell is in favour of
the applicant, and if the Scrutiny Committee is
satisfied that the claim of the applicant is genuine
and true, the Scrutiny Committee may issue the
validity certificate. The validity certificate shall be
issued in Form G.
(8)If the Scrutiny Committee, on the basis of the
Vigilance Cell report and other documents
available, is not satisfied about the claim of the
applicant, the Committee shall issue a show cause
notice to the applicant and also serve a
copy of the report of the Vigilance Officer by
registered post with acknowledgment due. A copy
shall also be sent to the Head of the Department
concerned, if necessary. The notice shall indicate
that the representation or reply, if any, should be
made within fifteen days from the date of receipt of
the notice and in any case not more than thirty
days from the date of receipt of the notice. In case
29
the applicant requests for adjournment or
extension of the timelimit, reasonable time, may
be granted.
(9)(a) After personal hearing if the Scrutiny
Committee is satisfied regarding the genuineness of
the claim, Validity Certificate shall be issued in
Form G.
(b) After personal hearing, if the Scrutiny
Committee is not satisfied about the
genuineness of the claim and correctness of the
Scheduled Tribe Certificate, it shall pass an
order of cancellation and of confiscation of the
Certificate and communicate the same to the
Competent Authority for taking necessary
entries in the register and for further necessary
action. The Scheduled Tribe Certificate shall
then be stamped as " cancelled and
confiscated".
19.Subrule (2) of Rule 12 clearly provides that only if the
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.
Therefore, in every case, as a matter of routine, the Scrutiny
Committee cannot mechanically forward the application to Vigilance
Cell for conducting an enquiry. When subrule (2) of Rule 12
30
contemplates that only if the Scrutiny Committee is not satisfied
with the documents produced by the applicant that the case should
be referred to Vigilance Cell, it follows that the Scrutiny Committee
is required to pass an order recording brief reasons why it is not
satisfied with the documents produced by the applicant. Before
referring the case to the Vigilance Cell, application of mind to the
material produced by the applicant is required and therefore, the
application of mind must be reflected in the order sheets of the
Scrutiny Committee.
20.It is not possible to exhaustively lay down in which cases the
Scrutiny Committee must refer the case to Vigilance Cell. One of
the tests is as laid down in the case of Kumari Madhuri Patil
1
. It
lays down that the documents of the preConstitution period
showing the caste of the applicant and their ancestors have got the
highest probative value. For example, if an applicant is able to
produce authentic and genuine documents of the preConstitution
period showing that he belongs to a tribal community, there is no
reason to discard his claim as prior to 1950, there were no
31
reservations provided to the Tribes included in the ST order. In
such a case, a reference to Vigilance Cell is not warranted at all.
21.In the impugned judgment in Civil Appeal No. 2502 of 2022
(Shilpa Vishnu Thakur’s case
2
), the Full Bench of the Bombay High
Court has noted that people having the surname “Thakur” belong to
both forward castes and various backward castes. Therefore, the
Full Bench may be right in saying that in every case, only on the
basis of the surname Thakur, it cannot be concluded by the
Scrutiny Committee that the applicant belongs to Scheduled Tribe
Thakur notified in the Entry 44 of the Maharashtra list. However,
we must note that in the case of a person having the surname
Thakur, there may be evidence in the form of entry of the name of
the caste as a Tribe or Scheduled Tribe in the land records, school
or college records or any official records concerning the applicant or
his ancestors. Only on the ground that the persons having the
surname Thakur may belong to a forward caste as well, it is not
necessary that in every case, the Scrutiny Committee should send
the case to Vigilance Cell. It all depends on the nature of the
documents produced before the Caste Scrutiny Committee and the
32
probative value of the documents. Therefore, whenever a caste claim
regarding Thakur Scheduled Tribe is considered, the Caste Scrutiny
Committee in every case should not mechanically refer the case to
the Vigilance Cell for conducting an enquiry including affinity test.
The reference to the Vigilance Cell can be made only if the Scrutiny
Committee is not satisfied with the material produced by the
applicant.
22.We can also contemplate one more scenario which is found in
many cases. These are the cases where the applicant relies upon
caste validity certificates issued to his blood relatives. Obviously,
such a validity certificate has to be issued either by the Scrutiny
Committee constituted in terms of the directions issued in Kumari
Madhuri Patil’s case
1
or constituted under the Rules framed under
the 2000 Act. In such a case, firstly, the Scrutiny Committee must
ascertain whether the certificate is genuine. Secondly, the Scrutiny
Committee will have to decide whether the applicant has established
that the person to whom the validity certificate relied upon by him
has been issued is his blood relative. For that purpose, the
applicant must establish his precise and exact relationship with the
33
person to whom the validity certificate has been granted. Moreover,
an enquiry will have to be made by the Scrutiny Committee whether
the validity certificate has been granted to the blood relative of the
applicant by the concerned Scrutiny Committee after holding due
enquiry and following due procedure. Therefore, if the Scrutiny
Committee has issued a validity certificate contemplated in terms of
the decision in the case of Kumari Madhuri Patil
1
, the examination
will be whether the enquiry contemplated by the said decision has
been held. If the certificate relied upon is issued after coming into
force of the 2000 Act, the Scrutiny Committee will have to ascertain
whether the concerned Scrutiny Committee had followed the
procedure laid down therein as well as in the ST Rules or the SC
Rules, as the case may be. For this verification, the Scrutiny
Committee can exercise powers conferred on it by Section 9(d) by
requisitioning the record of the concerned Caste Scrutiny
Committee, which has issued the validity certificate to the blood
relative of the applicant. If the record has been destroyed, the
Scrutiny Committee can ascertain whether a due enquiry has been
held on the basis of the decision of the Caste Scrutiny Committee by
34
which caste validity has been granted to the blood relative of the
applicant. If it is established that the validity certificate has been
granted without holding a proper inquiry or without recording
reasons, obviously, the caste scrutiny committee cannot validate the
caste certificate only on the basis of such validity certificate of the
blood relative.
23.In a given case, the Scrutiny Committee may be satisfied that
the caste validity certificate relied upon by the applicant has been
issued after making a lawful enquiry. But if the Scrutiny Committee
is of the view that the applicant has not clearly established that the
person to whom caste validity certificate produced on record has
been granted is his blood relative, in terms of subrule (2) of Rule 12
of the ST Rules, the Caste Scrutiny Committee will have to refer the
case for conducting an enquiry through Vigilance Cell. In such a
case, the Vigilance Cell can be directed by the Scrutiny Committee
to conduct an enquiry limited to the relationship claimed by the
applicant with the person in whose favour the caste validity
certificate has been issued. If, on the basis of the report of the
Vigilance Cell, the Scrutiny Committee is satisfied that the person in
35
whose favour caste validity certificate has been issued is a blood
relative of the applicant and lawful enquiry has been conducted
before issuing the validity certificate, the Scrutiny Committee will
have to issue validity certificate even if the applicant does not satisfy
the affinity test. For example, if it is established that the father or
grandfather of the applicant has been given a caste validity
certificate after holding a lawful enquiry in accordance with law, the
Caste Scrutiny Committee cannot hold that the grandfather or
father of the applicant, as the case may be, belongs to Scheduled
Tribe but the applicant does not belong to Scheduled Tribe. Only if
the relationship as pleaded by the applicant is not established, the
other evidence produced by the applicant and the result of the
affinity test can be taken into consideration by the Scrutiny
Committee.
24.As provided in subrule (7) of Rule 12 of the ST Rules, the
Vigilance Cell’s report is not conclusive. If on the basis of the report
of the Vigilance Cell and other evidence on record, the Scrutiny
Committee comes to a conclusion that the caste claim is genuine, a
caste validity certificate can be issued. Only on the ground that the
36
report of vigilance cell is in favour of the applicant, validity
certificate cannot be mechanically granted without application of
mind. If the report of the Vigilance Cell is against the applicant, his
caste claim cannot be rejected only on the basis of the report of the
Vigilance Cell without providing a copy of the report to the applicant
and without giving him an opportunity of being heard on the report.
After giving an opportunity to the applicant to make submissions on
the report, the Scrutiny Committee may reject the caste claim. In a
given case, the Scrutiny Committee can also record a finding that
the caste claim is genuine. It all depends on the facts of each case.
AFFINITY TEST
25.Now, we come to the controversy regarding the affinity test. In
clause (5) of Paragraph 13 of the decision in the case of Kumari
Madhuri Patil
1
it is held that in the case of Scheduled Tribes, the
Vigilance Cell will submit a report as regards peculiar
anthropological and ethnological traits, deities, rituals, customs,
mode of marriage, death ceremonies, methods of burial of dead
bodies etc. in respect of the particular caste or tribe. Such
particulars ascertained by the Vigilance Cell in respect of a
37
particular Scheduled Tribe are very relevant for the conduct of the
affinity test. The Vigilance Cell, while conducting an affinity test,
verifies the knowledge of the applicant about deities of the
community, customs, rituals, mode of marriage, death ceremonies
etc. in respect of that particular Scheduled Tribe. By its very
nature, such an affinity test can never be conclusive. If the
applicant has stayed in bigger urban areas along with his family for
decades or if his family has stayed in such urban areas for decades,
the applicant may not have knowledge of the aforesaid facts. It is
true that the Vigilance Cell can also question the parents of the
applicant. But in a given case, even the parents may be unaware
for the reason that for several years they have been staying in bigger
urban areas. On the other hand, a person may not belong to the
particular tribe, but he may have a good knowledge about the
aforesaid aspects. Therefore, Shri Shekhar Naphade, the learned
senior counsel, is right when he submitted that the affinity test
cannot be applied as a litmus test. We may again note here that
question of conduct of the affinity test arises only in those cases
38
where the Scrutiny Committee is not satisfied with the material
produced by the applicant.
26.There is an argument made that as far as SC Rules are
concerned, clause (d) of Rule 13 specifically provides for Vigilance
Cell conducting an affinity test and there is no such pari materia
provision in the ST Rules. We are unable to accept this submission
as subrule (4) of Rule 12 of the ST Rules enjoins the vigilance
officer to collect facts about the social status of the applicant or his
parents, as the case may be. Therefore, subrule (5) provides for the
examination of the applicant and his parents. For verification of
social status as contemplated by subrule (4) of Rule 12 of the ST
Rules, in a given case, affinity test can be resorted to by the
Vigilance Cell.
WHETHER CASTE SCRUTINY COMMITTEE
PERFORMS QUASIJUDICIAL FUNCTION
27.Before we go into the decisions in the cases of Vijakumar
3
and
Anand
4
, we need to deal with an argument made by one of the
interveners that the Scrutiny Committee is not a quasijudicial
authority. The said submission is based on a decision of coordinate
39
Bench of this Court in the case of Dayaram
9
. In paragraph 35, the
decision in the case of Dayaram
9
holds thus:
“35. The Scrutiny Committee is not an
adjudicating authority like a court or tribunal, but
an administrative body which verifies the facts,
investigates into a specific claim (of caste status)
and ascertains whether the caste/tribal status
claimed is correct or not. Like any other decisions
of administrative authorities, the orders of the
Scrutiny Committee are also open to challenge in
proceedings under Article 226 of the Constitution.
Permitting civil suits with provisions for appeals
and further appeals would defeat the very scheme
and will encourage the very evils which this Court
wanted to eradicate. As this Court found that a
large number of seats or posts reserved for the
Scheduled Castes and Scheduled Tribes were
being taken away by bogus candidates claiming
to belong to Scheduled Castes and Scheduled
Tribes, this Court directed the constitution of
such Scrutiny Committees, to provide an
expeditious, effective and efficacious remedy,
in the absence of any statute or a legal
framework for proper verification of false claims
regarding SCs/STs status. This entire scheme
in Madhuri Patil [(1994) 6 SCC 241 : 1994 SCC
(L&S) 1349 : (1994) 28 ATC 259] will only
continue till the legislature concerned makes
an appropriate legislation in regard to
verification of claims for caste status as SC/ST
and issue of caste certificates, or in regard to
verification of caste certificates already obtained by
40
candidates who seek the benefit of reservation,
relying upon such caste certificates.”
(emphasis added)
28.We must note here that this Court was dealing in the said
decision with a case arising from the State of Madhya Pradesh
where there was no statute in existence which covered the field
occupied by Kumari Madhuri Patil’s case
1
. Therefore, the
observations made in the said decision are in the context of powers
of the Scrutiny Committee ordered to be created under the decision
in the case of Kumari Madhuri Patil
1
. In the cases of Dayaram
9
and Jay Chitra
10
, this Court has not dealt with the 2000 Act or a
similar enactment applicable to any other State. On a conjoint
reading of the 2000 Act as well as ST and SC Rules framed
thereunder, it is impossible to conclude that the Scrutiny
Committee discharges only administrative functions. The Scrutiny
Committee under the 2000 Act has been entrusted with various
powers of the Civil Court under the Code of Civil Procedure, 1908.
The powers include a power to enforce the attendance of any
witness, to receive evidence on affidavits, to issue commissions for
41
the examination of witnesses or documents etc. The scheme of the
2000 Act and both SC and ST Rules provides for the Scrutiny
Committee holding an enquiry on the caste claim of the applicant, if
necessary, after examining the applicant on oath, recording
evidence of witnesses and calling for documents and records etc.
The Scrutiny Committee is expected to record reasons for granting
and rejecting the prayer for issue of caste validity certificates. Thus,
the Scrutiny Committee has all the trappings of a quasijudicial
authority.
DECISIONS IN THE CASES OF VIJAKUMAR &
ANAND
29.Now, we come to the decision in the case of Vijakumar
3
. A
perusal of the decision in the case of Vijakumar
3
shows that a
Bench of two Hon’ble Judges dealt with issue of a tribe claim arising
from the State of Maharashtra. A careful perusal of the decision
shows that there is not even a reference to the ST Rules in the said
decision. The attention of the Court was not invited to subrule (2)
of Rule 12, which lays down that the case can be referred to the
Vigilance Cell only if the Scrutiny Committee is not satisfied with
the material produced by the applicant. Without referring to the
42
provisions of the 2000 Act as well as SC and ST Rules, in paragraph
9 of Vijakumar’s case
3
, it is held that:
“9. Having heard the learned counsel for the
parties, we are of the considered opinion that there
is hardly any merit in the contentions raised on
behalf of the appellant. The affinity test was
completed by the Vigilance Officer as well as by the
Scrutiny Committee. The certificate has to be
validated only after it proves factually and legally
correct at the two stages; firstly, at the stage of
issuance and secondly, at the stage of verification.
If it fails the affinity test at either of these stages,
the validity of the certificate cannot be sustained.”
Hence, in view of the fact that the 2000 Act and Rules were not
considered, the decision in the case of Vijakumar
3
is certainly not a
binding precedent for the proposition that in every case, the
Scrutiny Committee is required to take recourse to the affinity test
by referring the case to the Vigilance Cell.
30.The decision in the case of Anand
4
in paragraphs 4 and 5
specifically refers to Rule 11 and 12 (2) of the ST Rules. In
paragraph 22, this Court held thus:
“22. It is manifest from the aforeextracted
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,
43
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 postIndependence
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
44
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, the
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 tribe's 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.”
(emphasis added)
We have recorded similar reasons earlier for coming to the
conclusion that affinity test will not always be mandatory and/or
conclusive.
31.Paragraph 19 of the decision in the case of Anand
4
reiterates
the position that Vigilance Cell enquiry can be ordered only when
45
the Scrutiny Committee is not satisfied with the materials produced
by the applicant. On this aspect, we may make useful reference to a
decision of this Court in the case of District Collector, Satara
6
.
This decision is penned down by one of us (Sanjay Kishan Kaul, J.)
which makes an indepth analysis of the ST Rules and in particular,
Rule 12. In paragraph 9, this Court held thus:
“9. … … … … … … … … … … … … … … …
A reading of the aforesaid Rules shows that
the role of the Vigilance Cell was restricted
as compared to the role envisaged
under Madhuri Patil case [Madhuri
Patil v. Commr., Tribal Development, (1994) 6
SCC 241 : 1994 SCC (L&S) 1349] ,
inasmuch as the assistance to be provided
to the Scrutiny Committee was not in
every case, but only if the Scrutiny
Committee was not satisfied with the
documentary evidence produced by the
applicant.”
(emphasis added)
32.Therefore, as observed earlier, the decision in the case of
Vijakumar
3
cannot be read as a binding precedent laying down a
legal principle that in every case of verification of caste claim, the
Caste Scrutiny Committee is under a mandate to refer the case to
the Vigilance Cell. As under the scheme of ST Rules, affinity test is
46
to be conducted by the Vigilance Cell, it follows that question of
conducting of affinity test will arise only when a case is made out for
referring the case to Vigilance Cell. If the Scrutiny Committee, after
holding an enquiry is satisfied with the material produced on
record, without referring the case to the Vigilance Cell, the Caste
Scrutiny Committee is under a mandate to grant validity to the
caste certificate. As noted earlier, in a given case, the Scrutiny
Committee can order a limited inquiry by the Vigilance Cell. For
example, if an applicant is relying upon a caste validity certificate
granted to his blood relative and the Scrutiny Committee, after
finding that the certificate is issued after due inquiry entertains a
doubt about the relationship pleaded, it can direct the Vigilance Cell
to make inquiry only about the relationship.
33.Now we come to the impugned Judgment in Shilpa Vishnu
Thakur’s case
2
. The questions framed for consideration by the Full
Bench are in paragraph 4 which reads thus:
“(i) Should the paramount consideration in
determining the caste claim of a person be
documentary evidence or, as the Supreme
Court held, “anthropological moorings and
ethnological kinship”; and is the “crucial
47
affinity test” relevant and germane for such a
decision?
(ii)(a) In cases where the documents produced
by a person claiming to be belonging to a
particular caste satisfy the requirement, for
example, in the case of “Thakur”, if all the
documents produced/filed and relied upon by
a candidate denote his caste as “Thakur”
then, without validating the caste claim with
reference to the “crucial affinity test”, should
the caste claim be validated or not?
(b) In a case where a person is not in
possession of any document to meet the
requirements of a particular caste claim can
the claim be scrutinized on the basis of the
“crucial affinity test”, and a validity certificate
be issued?
(c) Where a person who claims to belong to a
particular caste has some documents in his
favour and/or partially satisfies the crucial
affinity test, can the claim be certified and is
the candidate entitled to his caste certificate
being validated?” *
34.The conclusions of the Full Bench have been recorded in
paragraph 40. In clause (i) of paragraph 40, the Full Bench of the
High Court records that under Rule 12(2), the Scrutiny Committee,
if it is not satisfied with the documentary evidence produced, has to
forward the application to Vigilance Cell for holding a school, home
and other enquiry. The Full Bench does not lay down that in every
case where the Scrutiny Committee is dealing with a Scheduled
48
Tribe claim, a reference must be made to the Vigilance Cell. In
clause (ii) (a) of paragraph 40, the Full Bench records that the
Scrutiny Committee must have regard to the entire body of
evidence, including on the question as to whether the applicant has
satisfied the affinity test. As held earlier, the question of taking
recourse to the affinity test will arise only if the case is referred to
Vigilance Cell. In fact, in clause (b) of paragraph 40, the Full Bench
holds that even if an applicant does not have any documentary
evidence it will not ipso facto result into invalidation of the caste
claim. The reason is that in such a case, subrule (2) of Rule 12 will
apply and the Vigilance Cell will have to hold an enquiry including
affinity test. Even in such a case, affinity test will not be conclusive
either way as held in clause (2) of paragraph 20 in Anand’s case
4
.
In clause (c) of the same paragraph, the Full Bench of the High
Court also holds that even if the applicant partially satisfies the
affinity test, depending upon the nature of the evidence on record,
the Scrutiny Committee has power to validate the claim. Thus, even
clause (c) proceeds on the footing that the affinity test is not
conclusive.
49
35.Reading paragraph 40 of the impugned judgment as a whole,
we cannot conclude that a finding has been recorded by the full
Bench about the conclusive nature of the affinity test. The finding
cannot be understood to mean that reference to the Vigilance Cell
and conduct of affinity test is mandatory in every case. However, we
make it clear that for the reasons we have recorded in this
judgment, we do not approve the observation in the impugned
judgment that “the affinity test is an integral part of the
determination of the correctness of the claim”
CONCLUSIONS
36.Thus, to conclude, we hold that:
(a)Only when the Scrutiny Committee after holding an
enquiry is not satisfied with the material produced by the
applicant, the case can be referred to Vigilance Cell.
While referring the case to Vigilance Cell, the Scrutiny
Committee must record brief reasons for coming to the
conclusion that it is not satisfied with the material
produced by the applicant. Only after a case is referred
50
to the Vigilance Cell for making enquiry, an occasion for
the conduct of affinity test will arise.
(b)For the reasons which we have recorded, affinity test
cannot be conclusive either way. When an affinity test is
conducted by the Vigilance Cell, the result of the test
along with all other material on record having probative
value will have to be taken into consideration by the
Scrutiny Committee for deciding the caste validity claim;
and
(c)In short, affinity test is not a litmus test to decide a caste
claim and is not an essential part in the process of the
determination of correctness of a caste or tribe claim in
every case.
51
37.We direct the Registry to place the appeals/SLPs before the
appropriate Bench for deciding the same in the light of the reference
answered by us.
………..…..…………………J.
(SANJAY KISHAN KAUL)
..……..………………………J.
(ABHAY S. OKA)
………..…..…………………J.
(MANOJ MISRA)
New Delhi;
March 24, 2023.
52
Legal Notes
Add a Note....