Nandkishor Gajanan Choudhari & Ors. vs Deputy Director & Member-Secretary, The Scheduled Tribe Caste Certificate Scrutiny Committee, Yawatmal & Ors.

(PER : URMILA JOSHI PHALKE, J.)

Heard.

Rule. Rule made returnable forthwith. Heard finally by the consent of learned Counsel appearing for the respective parties.

By this Petition, the Petitioner Nos.1 to 3 take exception to the order dated 04.08.2023 passed by the Respondent No.1/Scheduled Tribe Caste Certificate Scrutiny Committee, Yawatmal, whereby the caste claim of the Petitioners was invalidated as belonging to ‘Mana’ Scheduled Tribe.

Petitioners are siblings claimed to be of ‘Mana’ Scheduled Tribe. Petitioner No. 1 was granted with the Scheduled Tribe certificate on 02.08.2019, whereas Petitioner Nos. 2 and 3 were granted with the caste certificate on 10.11.2016 and 27.02.2018. On 17.02.2021, the Petitioner No. 1 was appointed as a Postman under the establishment of Respondent Nos. 2 and 3 against the post reserved for the Scheduled Tribe. On 28.04.2016, the Petitioner No. 2 was appointed as a Health Assistant under the establishment of Respondent Nos. 4 and 5, whereas Petitioner No. 3 was appointed as a Talathi on the establishment of Respondent Nos. 6 and 8 on 16.01.2020. Their caste claims were forwarded for verification to the Respondent No. 1/Committee.

The Petitioners placed reliance on total 37 documents including the birth register extract of his great grandfather namely Maruti dated 10.05.1934. The Vigilance Officer has also verified the said documents. Despite the pre-constitutional documents which are verified, the Committee placed reliance on the adverse entries which does not belongs to the family members of the Petitioners and invalidated the caste claim of the Petitioners. Being aggrieved with the same, the present Petitioners approached this Court. It is the contention of the Petitioners that, after the vigilance report they have received a show cause notice which they have already replied with and given their explanations.

Heard Mr. Ramteke, learned Counsel for the Petitioners, who reiterated the said contentions and taken us through the various documents including caste certificates issued to the present Petitioners and old documents dated 10.05.1934 showing the birth entry of son of Maruti namely Krushna, wherein Maruti was recorded as ‘Mana’, entry dated 10.02.1932 showing the birth of son of said Maruti recording said Maruti as ‘Mana’ and birth entry of daughter of Maruti of year 1935, wherein also said Maruti was recorded as ‘Mana’. Thus, there are consistent entries as far as the great grandfather of the present Petitioners is concerned.

He submitted that, the Committee relied upon one entry of Tukaram Mahadev who is the cousin grandfather of the present Petitioners. Mahadev the cousin great grandfather of the Petitioners was having one son Tukaram and said Tukaram was having 3 sons. However, the Committee relied upon the birth entries showing that said Tukaram was recorded as ‘Kunbi’ when birth entry of his daughters were taken. Thus, he submitted that the family tree nowhere discloses that said Tukaram was having daughters, whereas the Vigilance Officer has relied upon the entries of some other Tukaram who was having daughters. He submitted that, the documents on which the Petitioners relied upon is having highest probative value, which are not considered by the Committee and merely on the basis of some statements and the adverse documents who are not relatives of the present petitioners invalidated the caste claim.

Per contra, Mr. Thakare, learned AGP, vehemently submitted that there are adverse entries against the forefathers of the present Petitioners. He invited our attention towards the vigilance report and submitted that the Vigilance Cell collected documents during enquiry which shows that one Tukaram Mahadev was recorded as ‘Kunbi’. There are other relatives of the present Petitioners who were also recorded as ‘Kunbi’ and’ therefore’ the Committee has rightly invalidated the caste claim of the present Petitioners and, therefore, no interference is called for.

On perusal of the entire material on record it reveals that, in support of the caste claim, the Petitioners have placed reliance on the family tree, which is reproduced as under:

As per the said family tree one Jhingraji was the original ancestor of the Petitioners having 2 sons Maruti and Mahadev and one daughter. Maruti is the great grandfather of the present Petitioners having 2 sons and 2 daughters namely Namdev, Shamrao, Devaki and Yashoda. As per the documents placed on record by the Petitioners shows that, the birth entry of son of Maruti dated 10.02.1932, wherein said Maruti was recorded as ‘Mana’. The birth entry of another son of said Maruti dated 10.05.1934 namely Krushna, is also recorded as ‘Mana’ and birth entry of the daughter of said Maruti namely Devaki of year 1935 shows at the relevant time said Maruti was recorded as ‘Mana’. Subsequently, the father of the Petitioners in his school record was also recorded as ‘Mana’. As far as the objection raised by the Committee regarding the birth entry of Shamrao is concerned, the Petitioners have already stated in the affidavit that Krushna and Shamrao are the one and the same.

During vigilance enquiry, the Vigilance Officer has collected the entry of one Tukaram Mahadev, which shows that Tukaram was having one daughter namely Tanhi on 12.04.1952 and at the relevant time, he was recorded as ‘Kunbi’, whereas the family tree shows that Tukaram the cousin grandfather of the Petitioners having 3 sons namely Haridas, Govinda and Ashok. Son of Namdev namely Shankar, was also recorded as ‘Mani’ in school record at the time of his admission. Admittedly, these entries on which the Petitioners relied upon are verified by the Vigilance Officer and found to be correct. The Vigilance Officer has submitted his report after recording the statements of various witnesses. The statements of these witnesses also shows that, the persons having surname as Savasakade, Choudhari, Gaikwad and Jambhure belongs to the ‘Mani’ community. The said statements further discloses that these ‘Mani’ community people were connected with the ‘Kunbi’ community people. On the basis of the said statements, the Committee has swayed away to find that the Petitioners’ forefathers are recorded as ‘Mana Kunbi’. In fact, none of the family members of the Petitioners mentioned in said family tree against whom these entries showing them ‘Kunbi’ are found. In fact, sons and daughters of Maruti are consistently recorded as ‘Mani’. The brother of Maruti i.e. Mahadev and his son Tukaram were also recorded as ‘Mana’. The father of the Petitioners namely Gajanan was also recorded as ‘Mana’. Thus, there are consistent entries showing the Petitioners’ forefathers as ‘Mana’.

It is well settled that entries of pre-independence era have a probative value Sub-rule (2) of Rule 12 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003 provides that only if the Scrutiny Committee is not satisfied with documentary evidence produced by the applicant, it shall forward application to the Vigilance Cell for conducting inquiry. While interpreting the said Rule, the Hon’ble Apex Court in the case of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State of Maharashtra & Ors., 2023(2) Mh.L.J.785, held that “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 petitioners is required and therefore, the application of mind must be reflected in the order sheets of the Scrutiny Committee.” 13. Perusal of the record nowhere reflects that, the Committee recorded its reasons as to dissatisfaction of the record and its reasons for referring the application to the Vigilance Cell. The Committee placed reliance on the documents collected by the Vigilance Cell showing adverse entry in the name of Tukaram Mahadev. We have also observed that, the Committee relied upon the entry of Tukaram Mahadev showing that while taking birth entry of his daughters he was recorded as ‘Kunbi’ but the family tree on record shows that Tukaram Mahadev was not having any daughter. Therefore, there is a substance in the contention of the learned Counsel for the Petitioners that, the said entry of Tukaram Mahadev is not connected with the family members of the present Petitioners. 14. Admittedly, the Vigilance Cell has verified the documents and it was not the report of the Committee that said documents are not genuine one. Thus, nothing is on record to show that, said Tukaram Mahadev on whom the Vigilance Cell relied upon belongs to the family of the present Petitioners. The Committee could not point out through any statement that the said entry of Tukaram Mahadev on whom the Vigilance as well as the Committee has relied upon related to the family members of the Petitioners. 15. It is common knowledge that several persons could be found of the similar names in one Village. When the Committee came with a specific case that these adverse entries are regarding, family members of the Petitioners, the Committee has to show the connection.

As observed earlier, that pre-constitutional document showing the caste of the Petitioners and their ancestors are of highest probative value. The Hon’ble Apex Court in the case of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State of Maharashtra & Ors., 2023(2) Mh.L.J.785, held in para No.20 that one of the tests is as laid down in the case of Kumari Madhuri Patil & Anr. Vs. Additional Commissioner, Tribal Development & Ors., 1994 Mh.L.J. Online (S.C.) 2 : AIR 1995 SC 94, which lays down that the documents of the pre-constitution period showing the caste of applicant and their ancestors have got highest probative value. For example, if an applicant is able to produce authentic and genuine documents of the pre-constitution period showing that he belongs to a tribal community, there is no reason to discard his claim as prior to 1950, there were no reservations provided to the Tribes included in the ST order. In such a case, a reference to Vigilance Cell is not warranted at all.

In the present matter, on the basis of the documents placed on record by the Petitioners, the Committee ought to have considered that the Petitioners belongs to ‘Mana’ Scheduled Tribe. The Committee must be mindful of the fact that, it has to verify the documents and not to collect the evidence to disprove the case of the claimants. The Committee while examining the claim of the Petitioners ought to have considered that the tribe validity certificate is granted to the family members of the Petitioners after verifying and scrutinizing the documents.

In the present case, the impugned order nowhere reflects that, the Petitioners have relied upon the documents which are not genuine one. The Committee is under obligation to rely upon the said documents which are of a pre-constitutional era. Admittedly, there is neither a finding recorded by the Committee nor evidence is adduced to show that the earlier tribe certificate has been obtained by the Petitioners by any fraud.

Insofar as the affinity test is concerned, now it is well settled that it is not a litmus test and the document of pre-constitutional era is a highest probative value in the eyes of law. The said view is expressed by the Hon’ble Apex Court in the case of Anand Vs. Committee for Scrutiny and Verification of Tribe Claims & Ors., 2011 (6) Mh. L.J. (S.C.) 919.

The similar view is reiterated by the Hon’ble Apex Court in the case of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti (supra), wherein in paragraph No.25 it is held that, 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. It is further held 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. While concluding, the Hon’ble Apex Court held that affinity test will not 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 tribe validity claim and in short, affinity test is not a litmus test to decide a tribe claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case.

In the light of the above, when affinity test is not an integral part of determination of correctness of claim and when Petitioners had submitted number of documents which were pre-constitutional having highest probative value showing their tribe as ‘Mana’ and when a family members obtained the tribe certificate on the basis of the said document, we are of the considered view that the tribe claim of the Petitioners ought to have been considered by the Committee when the Petitioners place on record the pre-constitutional documents which consistently shows that the forefathers of the present Petitioners were recorded as ‘Mana’.

In the light of the above facts and circumstances of the case, we find that the Petition deserves to be allowed by directing the Committee to issue tribe validity certificates to the present Petitioners to be ‘Mana’ Scheduled Tribe. Accordingly, we proceed to pass the following order.

Rule is made absolute in the aforesaid terms.

Pending application/s, if any, shall stand disposed of accordingly.