Mr. Dhyaneshwar Dodke vs Deputy Director And Member Secretary, The Scheduled Tribe Certificate Scrutiny Committee, Yavatmal & Ors.

O R A L J U D G M E N T : (Per Mrs. Urmila Joshi Phalke, J.)

Heard.

Rule. Rule made returnable forthwith. Taken up for final disposal with the consent of learned counsel for the parties.

By this petition, the petitioner is challenging the impugned order dated 04.10.2023 passed by respondent No.1- Scheduled Tribe Certificate Scrutiny Committee, Yavatmal in respect of caste verification of the petitioner invalidating the claim of the petitioner belongs to “Mana” Scheduled Tribe .

As per the contention of the petitioner, the petitioner belongs to “Mana” Scheduled Tribe and the Sub Divisional Officer, Yavatmal on 07.07.2017 issued the Tribe certificate in his favour, certifying that, he belongs to “Mana” Scheduled Tribe. Accordingly, on 04.11.2022 the Sub Divisional Officer, Yavatmal has issued Tribe Certificate in his favour certifying that, he belong to “Mana” Scheduled Tribe. On 07.07.2017 the petitioner through competitive examination appointed on the post of Assistant Technician under the establishment of respondent Nos.2 and 3 against the seat reserved for scheduled tribe on contract basis initially for three years. On completion of satisfactory service for three years the respondent No.3 on 27.10.2020 continued the petitioner on his post. Since then the petitioner is performing his duties. The appointment letter is also issued by respondent No.3. On 22.06.2017 the Tribe claim of the petitioner was forwarded to respondent No.1-Committee by respondent No.3 along with all requisite documents including pre constitutional documents dated 17.05.1923 i.e the birth register extract of petitioner’s great grand father namely Pandu Dodkya. However, these pre-constitutional documents are not considered by the Committee and rejected the caste claim only on the ground that name of the child of Pandu Dodkya is not mentioned in the birth extract as well as in the family tree.

Being aggrieved and dissatisfied with the same present petition is filed by the petitioner.

Heard learned counsel for the petitioner who submitted that the caste certificate is already issued in favour of the present petitioner. The family tree which is placed on record page No.29 shows that Pandu Dodkya is great grand father of the present petitioner.

The said family tree is reproduced for the perusal:-

Thus, he submitted that Pandu Dodkya is great grand father of the petitioner and there is no dispute as far as the relationship is concerned. The petitioner has produced on record the birth register extract showing that birth entry of the son of the Pandu was entered on 14.05.1923. At that time the caste of said Pandu Dodkya was recorded as “Mana”. This is pre constitutional entry. He further invited our attention towards other entry showing the birth of daughter of Chandrabhan Pandurang i.e. grand father of the present petitioner whose name was Panchfula. When birth entry of Panchfulla was taken her caste was also recorded as “Mana”. Thus, there are consistent entries of pre constitutional era which are having probative value are not considered by the Committee and Committee has swayed away by the fact that name of the son of Pandu Dodkya was not written in the said birth extract. He submitted that the judicial note can be taken about above fact that as soon as the birth has been taken place the entry was taken and on the first day of birth the child never named but the Committee has not considered the same and erroneously passed the order rejecting the caste claim of the petitioner. He also invited our attention towards the Vigilance Report and submitted that Vigilance Report also supports the claim of the petitioner and conclusion of the Vigilance Report shows that there are “Mana” entries of pre constitutional era. The only objection raised by the Vigilance is that the name of Panchfula was not mentioned in the statement of Ankush Dodke which was recorded during the enquiry. Thus, he submitted that considering the documents on record which consistently shows that the petitioner’s forefathers belongs to “Mana” Scheduled Tribe, the petitioner is entitled for validity certificate in view of the pre constitutional document by setting and quashing the order passed by Committee.

Learned AGP though strongly opposed the said contention, but she fairly agitated that only reason assigned by Committee was that name of the son of Pandu Dodya is not mentioned in the birth extract. She submitted that there is no dispute as far as the entries regarding daughter of Pandu Dodya and the daughter of Chandrabhan Pandurang namely Panchfula who is already shown in the family tree. The name Panchfula is already mentioned in the tree and shown as a daughter of Chandrabhan i.e. grand father of the present petitioner. She submitted that considering the only reason mentioned by the Committee that name of the son of Pandu Dodkya is not mentioned in the birth extract, the appropriate order shall be passed.

Learned counsel for respondent Nos.2 and 3 also supported the said contention.

After hearing both the sides and after going through the entire record, it reveals that whether the petitioner is succeeded in proving the caste claim as “Mana” Scheduled Tribe. Admittedly, the documents which are filed on record shows that Pandu Dodkya i.e. the great grand father of the present petitioner was recorded as “Mana”. When the birth entry of his son recorded during pre constitutional era, the said birth extract is on record page 27 which shows that on 17.05.1923 the birth entry regarding the son of Pandu Dodkya was recorded and certified copy of the same is obtained by the petitioner. At the relevant time said great grand father of the petitioner was recorded as “Mana”. The Committee has not disputed the said documents. The subsequent document on which the petitioner relied upon is the birth entry in respect of daughter of Chandrabhan Pandurang namely Panchfula, who is shown in the family tree. Said Chandrabhan Pandurang who is the grand father of the present petitioner has entered the name of his daughter in the birth extract on 24.07.1955. Thus, both the entries consistently show that the forefathers of the petitioner were recorded as “Mana”. In so far as this aspect is concerned, it is already settled by the catena of decisions that pre constitutional documents are having highest probative value and therefore, these documents cannot be ignored by the Committee. On that ground itself the decision of the Committee deserves to be quashed and set aside.

As far as the affinity test is concerned, which is also now well settled, in view of the judgment of Anand vs Committee For Scrutiny & Verification of Tribe Claims & Ors. reported in 2012 (1) SCC 113 wherein it is observed that while applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, 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 tribes' peculiar anthropological and ethnological trait. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.

In the present case, the petitioner has already relied upon on the pre constitutional documents which are having the highest probative value and therefore, we are of the considered view that the order of the Scrutiny Committee invalidating the petitioner’s tribe claim as well as impugned judgment and final order of Scrutiny Committee deserve to be quashed and set aside.

Accordingly, we proceed to pass following order:-

Writ Petition is disposed of.

Rule is made absolute in the above said terms.

Pending applications, if any, also stand disposed of.