Vandana D/o Sainath Shrote vs The Scheduled Tribe Caste Certificate Scrutiny Committee & Anr.

Heard learned counsel for the respective parties.

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

By these petitions the petitioners challenge the orders passed by the Scheduled Tribe Caste Certificate Scrutiny Committee, Yavatmal dated 29.05.2023 and 19.12.2022.

Both the petitioners are brother and sister. They claimed that they belong to “Halbi” Scheduled Tribe. The petitioners have obtained caste certificate on 20.07.2018. The petitioner Vandana in Writ Petition No.3883/2023 is in service in Postal Department, appointed on 17.04.2023, whereas, the petitioner in other petition Tushar was also appointed in Postal Department on 20.08.2022. The caste claim of Vandana and Tushar forwarded on 09.10.2019 and 02.08.2018 respectively for validation through Principal Gopikabai Sitaram Gawande Mahavidyalaya. This Court vide order dated 06.03.2023 and 27.09.2019 in Writ Petition Nos.1407/2023 and 5459/2019 directed Committee to decide the caste claim of the petitioners.

As per contentions of the petitioners despite they placed on record the documents showing that their forefathers i.e. great great grand father as well as cousin great grand father though recorded as “Halbi”, the Committee by ignoring those documents relying upon the contrary entry during the pre constitutional era who is not the relative of the present petitioners, invalidated the tribe claim. It is the contention of the petitioners that the Committee ignored the law laid down by this Court as well as the Hon’ble Apex Court that the pre constitutional documents are having highest probative value and only on the basis of the Vigilance Report without showing any relationship of the person, who was recorded as “Koshti” and not related to the present petitioners, invalidated the caste claim and therefore, the orders passed by the Committee invalidating the caste claim deserve to be quashed and set aside.

Heard Mr. Ashwin Deshpande, learned counsel for the petitioners who submitted that as per the family tree Hemu great great grand father of the petitioners was the original ancestor, having two sons Nagoba and Bhoju. The said Nagoba great grand father of the petitioners was having one son Motiram. The said Motiram grand father of the petitioners having one son Sainath and three daughters. The petitioners are the son and daughter of the said Sainath. The entry of birth of son of Nagoba recorded on 25.08.1923, in birth register shows that Nagoba was recorded as “Halbi”. The cultivation entry in perepatrak of year 1932-1933 also shows said Nagoba Hemu as “Halbi”. The entry of 1923 is also verified by the Vigilance Officer and found to be correct. He further submitted that during the Vigilance Report the Vigilance Officer has collected the entry showing that said Nagoba gave a birth to a female child on 06.08.1921 recorded as “Koshti”. The Vigilance Report also collected the document showing the successors of Nagoba who was recorded as “Koshti” namely Khandaraji Dajiba, Vitthal Dajiba, Madhukar Dajiba and Baby Dajiba are also recorded as “Koshti”. In fact the entry collected by the Vigilance Officer showing one Nagoba as a “Koshti” dated 06.08.1921 regarding the registration of birth date of daughter of said Nagoba dated 06.08.1921 is not related to them. Consequently, the others Dajiba and his children are also not related to them. He submitted that during vigilance statement of Vitthal Dajiba was recorded by the Vigilance who nowhere stated that he anyway blood related to the petitioners. Therefore, the reliance of the Committee on the said Vigilance Report showing contrary entries of the persons who are not related to the present petitioners is erroneous.

He submitted that on the contrary, the petitioners relied upon the entry of 1923 showing birth of son of Nagoba was recorded as “Halbi” as well as the entry in perepatrak showing said Nagoba as “Halbi” are consistent pre constitutional entries having probative value. Therefore, the orders of invalidation liable to be quashed and set aside.

Per contra, Mr. A.A. Madiwale, learned AGP for the State strongly opposed the said contention and submitted that as per Section 8 of the Maharashra Act, 2001 the burden squarely is on the petitioners who claim to be belonging to the Scheduled Castes and Scheduled Tribe. During Vigilance Inquiry, some documents are collected by the Vigilance Officer in accordance with the provisions of Section 12(2) of the Act of 2001 and Rules 2003 wherein said Nagoba was recorded as “Koshti”. Similarly, his successors were also recorded as “Koshti” and therefore, the Committee has rightly invalidated the caste claim of the petitioners and therefore, writ petitions being devoid of merits and deserve to be dismissed.

Undisputedly, the great great grand father of the petitioner Nagoba Hemu was recorded as “Halbi” in 1923. The birth entry of son of Nagoba dated 25.08.1923 recording him “Halbi” which is verified by the Vigilance Officer also. The family tree which is reproduced as under:-

Perusal of the family tree shows that one Hemu was great great grand father of the petitioners having two sons, Nagoba and Bhoju. Nagoba is the great great grand father of the petitioners who was recorded as “Halbi”. The subsequent entries showing Motiram grand father of the present petitioners as “Halbi” in 1961. Father of the petitioners Sainath as “Halbi”, the aunt of the present petitioners namely Pisabai as “Halbi” and both petitioners were also recorded as “Halbi”. Thus, there are consistent entries since 1923 till 2018 recording forefathers of the petitioners as well as petitioners as “Halbi”. Perusal of the entire material on record reveals that the petitioners have placed reliance on birth entry of the son of Nagoba in the year 1923. Extract of perepatrak showing Nagoba as “Halbi”, revenue record in the name of Motiram grand father of the present petitioners as “Halbi”, aunt of the present petitioners Nirmala and Pisabai as “Halbi”, the father of the petitioners was also recorded as “Halbi”. Only one entry of aunt of the petitioners namely Tai was recorded as Hindu, but, admittedly, the Hindu is not a caste but it is a religion. The Vigilance Report indicates that during vigilance they came across with the entry in the name of one Nagoba showing birth date of daughter of said Nagoba. The family tree nowhere shows that Nagoba great great grand father of the petitioners was having daughter. It shows that Nagoba was having only one son namely Motiram. Thus, from the vigilance record it nowhere reveals that they have collected any other family tree from which it reveals that said Nagoba was having any daughter. The petitioners have explained in the show cause notice that they are not related with the said Nagoba who was shown to be their great great grand father in the Vigilance Report. The Vigilance Report nowhere discloses that on what basis said Nagoba Koshti was shown to be related with the petitioners. The family tree submitted by the petitioners along with their tribe claim and the family tree verified by the Vigilance Committee nowhere reflects the name of the daughter of Nagoba. If the Vigilance Cell shows that said Nagoba Koshti as a relative of the petitioners, the documents must be collected to show that said Nagoba was having daughter who is related with the petitioners. As the Committee placed reliance on this document there ought to have been some material showing connection between the petitioners and said Nagoba Koshti.

The issue which falls for consideration is whether the documents relied upon by the Vigilance Cell showing caste entries as “Koshti” could have been treated as decisive evidence against the petitioners, particularly when, petitioners have disputed the relationship of those persons with their family and they relied upon other pre constitutional documents showing the caste as “Halbi”. It is well settled that while deciding the caste claim, Scrutiny Committee is required to undertake a holistic appreciation of the entire documentary evidence available on record. Old documents certainly carry a high degree of probative value; however, the probative value attached to a document depends not merely on its antiquity but also on its relevance, authenticity and connection with the claimant's family lineage. A document, though old, cannot be relied upon against a claimant unless it is established that the said document pertains to the claimant or his immediate paternal ancestry.

In the present case, the petitioners have specifically contended that the document relied upon by them showing their great great grand father Nagoba as a “Halbi” is also verified by the vigilance and reflected in the Vigilance Report. The another entry which is disowned by the petitioners showing one Nagoba as “Koshti” which is disputed by the petitioners and disowned the relationship. The Committee while relying upon such documents was required to record a clear finding establishing the genealogical connections between those persons and the petitioners. During Vigilance Inquiry, the Vigilance Officers have recorded the statement of one Vitthal Dajiba, who according to the Vigilance Report, related with the present petitioners by way of blood relation. The statement of said Vitthal Dajiba was recorded by the Vigilance Officer. The said statement nowhere discloses that he is blood related with the petitioners.

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 and ors. reported in 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.

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 “Nagoba”. The petitioners have denied the relationship with both entries. Neither the Vigilance Cell nor the Committee placed any document on record to show that this entry is related to the forefathers of the petitioners and the petitioners have suppressed the same.

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 relating to family members of the petitioners, the Committee has to show its connection.

As observed earlier, the pre-constitutional document showing the caste of the petitioners and their ancestors are of a highest probative value. The Hon’ble Apex Court in the case Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti vs. State of Maharashtra and ors reported in 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 and another vs. Additional Commissioner, Tribal Development and others, reported in 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 document 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 case, the Committee has come to the conclusion that the petitioners could not prove the caste claim and swayed away by the documents without showing any relationship of the persons with the present petitioners. The Committee must be mindful of the fact that the documents of pre constitutional era having probative value and on examining the claim of the petitioners ought to have considered that the petitioners have established their caste claim on the basis of the said documents. Perusal of the record nowhere reflects that the Committee recorded its reasons as to the dissatisfaction of the record. The Committee is under obligation to rely upon the said documents.

The caste claim of the present petitioners is also invalidated on the ground of affinity test. This aspect is now well settled. The full Bench of Hon’ble Apex Court in the case of Shipa Thakur vs. State of Maharashtra reported in 2009(3) Mh.L.J. 995, Vijay Kumar vs. State of Maharashtra and ors, reported in (2010) 14 SCC 489 and Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and ors, reported in (2012)1 SCC 113 held that affinity test is not a litmus test and that document of pre constitutional era is of highest probative value in the eyes of law. The same view is reiterated by the Hon’ble Apex Court in the recent judgment of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti vs. State of Maharashtra and ors 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 the correctness of a caste or tribe claim in every case.

In the light of the above, when question as to whether affinity test is an integral part of determination of correctness of claim and when petitioners had submitted number of documents which were pre- constitutional having high probative value showing their tribe as “Halbi” and said tribe has been included in the Presidential Order 1950, we are of the considered view that the tribe claim of the petitioners ought to have been considered by the Committee giving appropriate weightage to the Tribe Validity Certificates issued to the family members.

In the light of the above discussion and circumstances both petitions deserve to be allowed by directing the Committee to issue Caste Validity Certificates to the petitioners as belonging to “Halbi” Scheduled Tribe. Hence, 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.