Mah. Adiwasi Thakur Jamat Swarakshan Samiti vs The State of Maharashtra & Ors.

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 – Maharashtra Scheduled Tribes (Regulation of Issuance and verification of) Certificate Rules, 2003 – 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 –There was a conflict of views expressed in Vijakumar v. State of Maharashtra & Ors. and Anand v. Committee for Scrutiny and Verification of Tribe Claims & Ors. regarding recourse to affinity test – Held: In view of the fact that the 2000 Act and Rules were not considered, the decision in the case of Vijakumar is 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 – This Court record similar reasons as held in the case of Anand that affinity test will not always be mandatory and/or conclusive. Answering the reference, the Court

HELD: 1. The 2000 Act has introduced a two-tier system for the verification of caste claims. In view of the express language used by sub-section (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 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 sub-section

(1) of Section 4 can be issued. Therefore, sub-section (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. Sub-rule (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 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. 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 two-tier 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 the burden which he is required to discharge before the Competent Authority. [Paras 14, 15][1118-F-H; 1119-A-G]

2. Sub-rule (2) of Rule 12 of the ST Rules 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 sub-rule (2) of Rule 12 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. [Para 19][1123-B-D]

3. 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 sub-rule (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 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. [Para 23][1125-C-G] AFFINITY TEST

4. 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, the learned senior counsel, is right when he submitted that the affinity test cannot be applied as a litmus test. This Court may note here that question of conduct of the affinity test arises only in those cases where the Scrutiny Committee is not satisfied with the material produced by the applicant. [Para 25][1126-E-G] WHETHER CASTE SCRUTINY COMMITTEE

PERFORMS QUASI-JUDICIAL FUNCTION

5. 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 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 quasi-judicial authority. [Para 28][1128-C-F]

DECISIONS IN THE CASES OF VIJAKUMAR &

ANAND

6. In view of the fact that the 2000 Act and Rules were not considered, the decision in the case of Vijakumar 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. [Para 29][1129C-D]

7. The decision in the case of Anand in paragraphs 4 and 5 specifically refers to Rule 11 and 12(2) of the ST Rules. This Court recorded similar reasons earlier as held in paragraph 22 of Anand for coming to the conclusion that affinity test will not always be mandatory and/or conclusive. [Para 30][1129-D; 1130-F-G]

8. Now, coming to the impugned Judgment in Shilpa Vishnu Thakur’s case. The Full Bench does not lay down that in every case where the Scrutiny Committee is dealing with a Scheduled 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, sub-rule (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. 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. [Para 34][1132-D-H; 1133A] CONCLUSIONS

9. Thus, to conclude, this Court holds 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 to the Vigilance Cell for making enquiry, an occasion for the conduct of affinity test will arise.

(b) For the reasons 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;

(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. [Para 36][1133-C-G]

Kumari

Madhuri

Patil

and

Another

v.

Addl.Commissioner, Tribal Development & Others (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; Anand v. Committee for Scrutiny and Verification of Tribe Claims & Ors. (2012) 1 SCC 113 : [2011] 15 SCR 386; District Collector, Satara & Anr. v. Mangesh Nivrutti Kashid (2019) 10 SCC 166 : [2019] 15 SCR 685 – relied on. Palghat Jilla Thandan Samudhaya Samrakshna Samithi & Anr. v. State of Kerala (1994) 1 SCC 359 : [1993] 3 Suppl. SCR 872; State of Maharashtra & Ors. v. Ravi Prakash Babulalsing Parmar & Anr. (2007) 1 SCC 80 : [2006] 8 Suppl. SCR 105; Dayaram v. Sudhir Batham & Ors. (2012) 1 SCC 333 : [2011] 15 SCR 1092; J. Chitra v. District Collector & Chairman, State Level Vigilance Committee, Tamil Nadu & Ors. (2021) 9 SCC

811 – referred to.

Vijakumar v. State of Maharashtra & Ors. (2010) 14 SCC 489 – Not a binding precedent.

Shilpa Vishnu Thakur v. State of Maharashtra 2009 (3) Mh.LJ (F.B) 995; Apoorva d/o Vinay Nichale v.

Divisional Committee 2010 (6) Mh.LJ – referred to.