1 wp2645.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2645 OF 2010 Gopal s/o Mashnaji Mathewad, Age: 23 years, Occ: Education, R/o. At Post Billali, Tq.Mukhed, District Nanded. ...PETITIONER VERSUS 1. The State of Maharashtra, through its Secretary, Tribe Development Department, Mantralaya, Mumbai. 2. The Scheduled Tribes Certificate Scrutiny Committee, Aurangabad Division, Aurangabad. Through its Member/Secretary. 3. Mohanrao Patil College of Education, Shirul Tajband, Tq. Ahmedpur, District Latur. ...RESPONDENTS ... Mr. S.B. Chavan, Advocate for the petitioner. Mr. P.P. More, A.G.P. for respondent No.1. None for respondent No.2. ... CORAM: SMT. NISHITA MHATRE & S.S. SHINDE, JJ. DATE : 7TH APRIL, 2011 2 wp2645.10 ORAL JUDGMENT : [ SMT. NISHITA MHATRE, J.] Rule, returnable forthwith. By consent, heard finally. 2. The grievance of the petitioner in the present petition is that his tribe claim has been negatived by the Scheduled Tribes Certificate Scrutiny Committee,Aurangabad Division, Aurangabad ( For short, "the Scrutiny Committee") without any application of mind. The petitioner claims he belongs to the Bhil tribe. 3. The notices of this petition were issued to the respondents on 13-04-2010. However, there is no affidavit filed on record by the Scrutiny Committee. The Advocate for respondent No.2 the Scrutiny Committee is also not present. In fact, the Advocate for respondent No.2 had sought adjournments on three previous occasions for filing a reply. Despite this, there is no reply on record. 3 wp2645.10 4. We have heard the learned Advocate for the petitioner and the learned A.G.P. for respondent No.1. On scrutinizing the report of the Scrutiny Committee, we find that the petitioner's grievance that his tribe claim has been negatived without any application of mind by the Scrutiny Committee, is justified. The first error committed by the Scrutiny Committee is that it has relied on a certificates issued to two persons i.e. the "brother" of the applicant and the "uncle" of the applicant. The vigilance cell report indicates that the father of the petitioner had only one son i.e. the petitioner and a daughter. Obviously, the Scrutiny Committee has not considered the vigilance cell report while passing the impugned order. 5. The other defect in the order of the Scrutiny Committee is that the vigilance cell report which it has considered, has been issued without examining the parents of the petitioner. 4 wp2645.10 Undisputedly, the petitioner is the only literate member in the family. In these circumstances, it was necessary for the vigilance cell to examine the parents of the petitioner. They are illiterate agricultural labourers and therefore, it was absolutely necessary for them to be questioned by the vigilance cell in order to ascertain whether there was any affinity between the family and the Bhil tribe. When old documents are unavailable for verifying a person's tribe claim, the affinity test assumes greater significance. It is trite that the affinity of the person is to be ascertained by the vigilance cell by questioning the parents and close relatives of the person. Their responses to the questions regarding their traits, customs, rituals, deities worshiped etc. must be recorded by the vigilance cell. The Scrutiny Committee must have this information before it decides the tribe claim of a person. 6. In Ku. Heera d/o Shalikram Mundharikar vs. Scheduled Tribe Caste Certificate Scrutiny 5 wp2645.10 Committee, Nagpur & Ors. reported in 2010 ALL MR (Supp.) 468, the Division Bench of this Court at Nagpur has held that it is mandatory for the vigilance cell to submit its report only after examining both the parents. It has been observed thus : " We find that the order of the Scrutiny Committee is vitiated due to non-compliance of Sub-rule (5) of Rule 12. The Rule requires the Vigilance Cell to examine the parents or guardians of the applicant. The word "parents" implies both the father and the mother. The need for examining the father as well as the mother cannot be undermined in a case of this nature. It is well-known that in a patriarchal society, caste is determined by the caste of the father. An enquiry into the candidate's caste can be best made by examining the father or others on the paternal side, such as uncles. We do not see how it is possible to produce a correct result in scrutiny without 6 wp2645.10 examining the father or such other relatives on the paternal side as are available. We accordingly hold that Sub-rule (5) of Rule 12 which requires the Vigilance Cell to submit a report only after examining both the parents is mandatory. We, therefore, hold that the Vigilance Cell has acted contrary to the Rules in holding the enquiry and submitting the report. The order of the Caste Scrutiny Committee rests on such a report and is, therefore, vitiated." 7. In the case of Digambar Domaji Wagh v. Scheduled Tribe Caste Certificate Scrutiny Committee, Amravati and another reported in 2010(1) Mh.L.J. 510, the Division Bench of this Court at Nagpur has observed that the parents of the candidates must be examined for the purpose of verification of the tribe claim. 8. In the present case, in our opinion, the Scrutiny Committee has erroneously concluded that 7 wp2645.10 the petitioner does not belong to 'Bhill' community which falls within The Scheduled Tribes. We, therefore, remand the proceedings to the Scrutiny Committee. The Scrutiny Committee will also call for a report from the Vigilance Cell, afresh and shall decide the tribe claim of the petitioner after giving him a personal hearing within six months from today. 9. Interim orders passed by this Court which are continued upto today, shall continue till the Scrutiny Committee decides the tribe claim of the petitioner and for two weeks thereafter. 10. Rule made absolute on the above terms. sd/- sd/- [S.S. SHINDE, J.] [SMT. NISHITA MHATRE, J.] sut/Apr11