1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 2217 OF 2007 WITH CIVIL APPLICATION NO. 896 OF 2010. Prakash s/o Shankarrao Raut of Washim. ... PETITIONER VERSUS Committee for Scrutiny and Verification of Tribe Claim, Nagpur and another. ... RESPONDENTS .... Shri A.C. Dharmadhikari, Advocate for the petitioner. Shri J.P. Pendse, Advocate along with Shri S.M. Puranik, Advocate for respondent No.1. Shri A.S. Fulzele, Assistant Government Pleader for respondent No.2. .... CORAM : D.B. BHOSALE AND PRASANNA B. VARALE, JJ. DATED : 22ND JULY, 2010. ORAL ORDER : (Per Prasanna Varale, J.) Heard learned Counsel for the parties. 2. This writ petition under Article 227 and 226 of the Constitution of India is directed against the order dated 04.07.2002 rendered by respondent No.1-Committee for Scrutiny and Verification of Tribe Claim, Nagpur (for short “the Committee”) whereby the petitioner's caste certificate issued by the Executive Magistrate, Deoli, 2 District Wardha dated 06.07.1983 has been cancelled holding that he does not belong to “Gond-Gowari” – Scheduled Tribe. 3. At the outset, Shri A.C. Dharmadhikari, learned Counsel for the petitioner invited our attention to Civil Application No. 896 of 2010 and submitted that before hearing the writ petition, the Civil Application may be heard and disposed of. In this Civil Application, the petitioner has prayed for direction to respondent No.1 to conduct biological test including blood examination if the same are recognized and legally accepted as authentic test for determining anthropological characteristics, traits and resemblance of the petitioner with the Gond- Gowari Scheduled Tribe. Shri Dharmadhikari, in short, submitted that a DNA test of the petitioner may help for determining anthropological characteristics, traits and resemblance with Gond-Gowari. This prayer is opposed by respondent No.1-Committee by filing their reply dated 16.06.2010. They have stated that the test as prayed is of no avail to the petitioner since there does not exist any comparable source by which the question can be decided. It is further stated that there does not exist any such known test including DNA test to conclusively hold that the petitioner belongs to a particular tribe by conducting such test. Shri Dharmadhikari, the learned Counsel for the petitioner has invited our attention to the report of DNA test of the petitioner which he has undergone voluntarily. The report of the DNA test issued by Indo DNA 3 Diagnostics Lab is placed on record as “Annexure-1” to the Civil Application. The perusal of the certificate shows :– Haplogroup J1 Time of Origin : 25-30,000 years ago Place of Irigin : Southwest Asia Description Haplogroup J1, a subgroup of J, is common in the Middle East and the Mediterranean region, including North Africa and Southern Europe. J1 is particularly associated with the expansion of Semitic tribes in Northers Africa. 3.1 We are unable to persuade ourselves that this report is of any help to establish the ethnic linkage of the petitioner with “Gond Gowari” tribe. There is neither any scientific reasoning nor any logical conclusion which can be arrived on the basis of such certificate. When we asked learned Counsel for the petitioner to establish the ethnic linkage/socio cultural traits with the help of this certificate so as to show the conclusive ethnic linkage, learned Counsel did not and could not establish the same with the help of this certificate. In view of these facts, we are unable to place any reliance on such certificate. One more fact which needs to be taken into consideration that this certificate is issued by a private laboratory. There is nothing on record to show that this laboratory is either approved by any State Government/ Central Government or any of the recognized medical organization and as such 4 it is very difficult to place any reliance on such a document. 3.2 In the circumstances, we are not inclined to grant the prayer in the civil application because there is absolutely no material before us on the basis of which it could be said that by conducting such test, it is possible to connect the petitioner with “Gond-Gowari”. That apart, such prayer was never made by the petitioner before the Committee and, therefore, there is no question of granting such prayer in writ petition for the first time. Hence the application is rejected. 4. The writ petition was filed in May, 2007 and it was adjourned from time to time on different grounds. We have perused all the orders passed by different benches during last about three years. In this backdrop, by consent, we have heard learned Counsel for the parties for final disposal of the writ petition at the stage of admission. We have perused the entire material placed before us including the original files produced by the learned Counsel for respondent No.1-Committee. 5. Shri A.C. Dharmadhikari, learned Counsel for the petitioner has assailed the order of the Committee mainly on the ground that the Committee did not consider the material placed by the petitioner before it in proper perspective. He further submitted that even the issue of crucial affinity test was also not examined in the manner in 5 which it ought to have been examined. He further submitted that the statement of Smt. Anjana Shreeramji Neware recorded in the course of enquiry conducted by Police Vigilance Cell, which was relied upon by the Committee, the petitioner was not allowed to cross-examine her, despite such prayer was made and in view thereof, the decision of the Scrutiny Committee vitiates. He then submitted that the enquiry through Police Vigilance Cell was not conducted by the Research Officer but it was conducted by Police Officer who had no knowledge of socio cultural traits, characteristics and other information in respect of Gond-Gowari – Scheduled Tribe. Lastly, he submitted that the petitioner was not given sufficient opportunity of hearing by the Committee. In support of his submissions, he placed reliance upon the judgment of the Supreme Court in Kumari Madhuri Patil and another .v. Additional Commissioner, Tribal Development (reported in 1994 (6) SCC 241) so also the Full Bench judgment of this court in Shilpa Vishnu Thakur .v. State of Maharashtra and others (reported in 2009 (3) Mh.L.J., 995). 6. The Full Bench of this Court in Shilpa Thakur's case, in the concluding paragraph has stated as to what procedure the Scrutiny Committee should follow while dealing with the caste claims. Before we proceed further, it would be advantageous to reproduce the relevant observations in paragraph 40(i) of the Full Bench Judgment. 6 The relevant observations read thus :- “... Once the caste certificate is issued, an applicant has to submit documents for verification by the Scrutiny Committee under Rule 12(2) and an affidavit in Form-F containing full disclosure of the information relevant to the determination of the tribal status. Under Rule 12(2), the Scrutiny Committee, if it is not satisfied with the documentary evidence produced, has to forward the application to the Vigilance Cell for a school, home and other inquiry. Under sub-rule (4) the Vigilance Officer has to personally verify and collect all the facts about the social status claimed by the applicant. If the Scrutiny Committee is not satisfied about the claim of the applicant on the basis of the report of the Vigilance Cell and other documents available, a notice to show cause is issued to the candidate for a personal hearing. The Scrutiny Committee must be satisfied about the genuineness of the claim and the correctness of the Scheduled Tribe certificate. If it is not satisfied, it has to pass an order of cancellation and of the confiscation of the certificate. The Competent Authority, the Appellate Authority and the Scrutiny Committee exercise quasi-judicial powers in arriving at a determination with reference to a claim to belong to a Scheduled Tribe. These Authorities must have regard to the entire body of evidence, including the documentary and oral evidence. The affinity test is an integral part of the determination of the correctness of the claim. As quasi-judicial authorities, each of these Authorities must apply settled principles of law in the evaluation of evidence. A claim can be allowed only where the Authority is satisfied about the genuineness and the correctness of the claim on the basis of the entire evidence on the record.” In Madhuri Patil's case (supra), the Supreme Court laid down the procedure for the verification and scrutiny of caste and tribe claims. The procedure has now been codified into legislation in the State of Maharashtra. Madhuri Patil's case, while elaborating on the basis of 7 scrutiny, accepted the relevance and importance of the affinity test. By the affinity test, the Scrutiny Committees would be entitled to verify the genuineness of the claim of an applicant on the basis of ethnicity and anthropology. The expression “affinity” is used to denote the association of the applicant with a Scheduled Tribe into which he or she has been born by the application of certain settled standards. 7. Keeping in view the observations made by the Supreme Court and the procedure mentioned in the judgment of Full Bench, we have examined the petitioner's case and the arguments advanced by Shri A.C. Dharmadhikari, learned Counsel for the petitioner and perused the entire material placed on record. The petitioner, in support of his claim, placed 17 documents before the Committee. Out of which, the document at Serial No.6 namely, birth extract of the petitioner's father dated 24.09.1947 only is Pre Constitution (Scheduled Tribes) Order, 1950. The other documents are comparatively very recent. The birth extract of petitioner's father dated 24.09.1947 shows his caste as “Gawari”. The other documents are caste certificate dated 06.07.1983 issued by the Executive Magistrate in favour of the petitioner mentioning his caste as “Gond-Gowari”, which was under scrutiny before the Committee; the petitioner's primary school leaving certificate dated 16.07.1973, showing his caste as “Gawari”; his D.Ed. College leaving certificate, mentioning his caste as “Gond-Gowari”; 8 letter dated 01.03.1996 issued by the Collector without informing that there is no entry of name in register of 09.09.1986; Service Book, mentioning his caste as “Gond-Gawari”, which, entry was made at the instance of the petitioner; affidavit of the petitioner dated 04.03.1996; certificate dated 15.02.2995 issued by the Special Executive Officer, District Wardha; Certificate dated 06.03.1995 issued by Sarpanch, Gram Panchayat, Andhoti; certificate dated 30.03.1995 issued by Member of Gram Panchayat; certificate dated 06.03.1995 issued by Police Patil; certificate dated 20.11.1997 issued by Dr. Bhau Mandokar; the identity cards dated 18.05.1985 and April, 1990 issued by District Social Officer, Yavatmal in favour of the petitioner; copies of admission card of the petitioner; affidavit of the petitioner dated 24.11.1997; and a letter issued by Research Officer, Government of India, Ministry of Home Affairs, New Delhi dated 22.05.1984. 7.1 From bare perusal of the dates of all the documents, except the birth extract of the petitioner's father and school leaving certificate of the petitioner dated 24.09.1947 and 16.07.1973 respectively, are comparatively very recent and they are obtained by the petitioner in support of his claim. In our opinion, the certificates issued by different authorities/persons in 1995-1997 so also some other documents which do not mention the caste of the petitioner would not help the petitioner to support his claim. None of the documents produced by the 9 petitioner, in our opinion, supports the petitioner's claim that he belongs to “Gond-Gowari” - Scheduled Tribe. 7.2 Insofar as the document at serial No.17, namely, letter dated 22.05.1984 issued by the Research Officer, Government of India, Ministry of Home Affairs, New Delhi is concerned, the Committee has rightly held that the petitioner cannot take benefit of this letter in view of the another letter issued by the Director, Government of India, Ministry of Welfare dated 16.08.1988 making it clear that, “Gond- Gowari” who can establish its affinity and relationship in the main tribe “Gond” can alone be considered as tribals and given caste certificates and the persons belonging to `Gowari community' who do not have affinity and relationship with the main `Gond' tribe are not entitled for certificate as Scheduled Tribes. 9. The Police Vigilance Cell conducted an enquiry and their report shows that the petitioner does not belong to Gond-Gowari Scheduled Tribe. Their report shows that they obtained school admission extract from Yeshwant High School, Anghoti in which caste of the petitioner was clearly mentioned as “Gawari”. It appears that the petitioner was not satisfied with the Enquiry conducted by the Police Vigilance Cell and its report. The petitioner had serious reservation and objection for the police officer who conducted the inquiry. The 10 Committee, therefore, in order to verify the correctness of the tribe claim, once again conducted enquiry through Police Vigilance Cell associated with the Research Officer. The Police Vigilance Cell furnished their report to the Committee on 25.02.2002. The reports of the Vigilance Cell were given to the petitioner inviting his comments so also he was given to fill up the questionnaire. The petitioner did fill up the questionnaire and after doing so he scratched out the entire information written by him stating that the same was not necessary. We have perused the said document with the scratching and the endorsement made by the petitioner. 10. We have also perused the report of the Vigilance Cell. It is placed on record at page 64. It is interesting to note that the Research Officer has stated that the petitioner has refused to cooperate with the Vigilance Cell conducting the home enquiry. The report further shows that the statements of other persons namely Sudhakar Raut, Shreeram Neware, Vishweshwar Neware and these persons stated in their statements that they belong to Gowari community and they have no relation with the Gond community. They further stated that the Gowari community is an independent tribe community; whereas the Gond is separate and independent community. They have further stated that the cultural traits are different in Gowari community and Gond community. The Vigilance Cell opined that from the material 11 collected by the Vigilance Cell, the cultural traits of the petitioner do not match to the “Gond Gowari” tribe.that they belong to Gowari community and they have no relation with the Gond community. They further stated that the Gowari community is an independent and is not concerned with the Gond community. They have further stated that the cultural traits are different in Gowari community and Gond community. The Vigilance Cell opined that from the material collected by the Vigilance Cell, the cultural traits of the petitioner do not match with the “Gond Gowari” tribe. 11. At this stage we would like to make reference to the necessary dates and events demonstrating non-cooperative and adamant conduct/attitude of the petitioner, who holds the post of Tahsildar, which he got on the basis of the certificate issued by the Executive Magistrate, Deoli, District Wardha dated 06.07.1983. This will also demonstrate that the petitioner was not only given sufficient opportunity by the Committee but he tested the patience of the Committee. 11.1 The petitioner has filed the instant writ petition challenging the order of the Committee after five years. We do not wish to enter into the controversy raised by the petitioner that the order of the Committee was not served on him and he had to obtain the same 12 under the Right to Information Act. However, we noticed that on this ground alone, this petition was adjourned on several occasions by different benches from time to time issuing directions, including to file affidavit, record etc. in support of their contentions. 11.2 It appears initially the claim of the petitioner was referred to the Committee by the Desk Officer, Revenue and Forest Department, Mantralaya on 16.06.1997. The Committee had issued notices on 27.10.1997, 24.08.1998, 05.10.1998, 24.04.1999, 09.08.1999 and 11.10.1999 asking the petitioner to appear before the Committee. Despite all these notices, he did not appear even on single occasion which forced the Committee to decide the caste claim on the basis of available record on 18.10.1999. This order of the Committee was challenged by the petitioner in a Writ Petition being Writ Petition No. 4665 of 1999. The petition was allowed and the matter was remanded to the Committee to re-verify the tribe claim of the petitioner. 11.3 After remand, the Vigilance Cell enquiry was conducted and the report thereof was given to the petitioner on 26.02.2001 and he was asked to submit his reply within 15 days. The petitioner on 27.03.2001, in stead of filing reply, objected to the Vigilance Cell Report and referred to the letter dated 22.05.1984 issued by the Research Officer, Government of India, Ministry of Home Affairs, New Delhi claiming 13 benefit of the said letter. 11.4 The Committee thereafter adjourned the matter for personal hearing on 23.04.2001. The petitioner appeared before the Committee and filled up the proforma questionnaire and was heard by the Committee. The information filled up by the petitioner in the questionnaire did not resemble with that of Gond-Gowari Scheduled Tribe. The Committee thereafter, on 04.05.2001 issued notice and called the petitioner for hearing on 21.05.2001. The petitioner, however, sent a telegram and sought adjournment. The matter was thereafter fixed for hearing on 29.08.2001. On that date, though he was informed vide notice dated 07.08.2001, he did not appear before the Committee. 11.5 Then the second enquiry by the Police Vigilance Cell was conducted and a report thereof was given to the petitioner on 02.03.2002 and he was asked to submit his reply within 15 days. The petitioner did not submit his reply and on 14.03.2002 submitted a letter to the Committee raising certain points demanding the decision on those points first. The objection was in respect of the association of Research Officer with the Vigilance Cell. 11.6 He thereafter submitted his reply to the Vigilance Report and 14 made several allegations against the Committee members and sought permission to cross-examine Smt. Anjana Shriramji Neware. 11.7 At this stage, we record that we did not look into the statement of Smt. Anjana Shriramji Neware, which, we also made it clear to Shri A.C. Dharmadhikari, learned Counsel for the petitioner and we asked him to argue on the basis of the other material on record, as if that such statement does not exist. Shri A.C. Dharmadhikari agreed and addressed the Court without referring to the said statement and seeking remand of the matter for that purpose. We note that the learned Counsel for the petitioner, before this Court, did not make any grievance but he wanted to cross examine any other person except Anjana Neware. 11.8 Then the Committee called the petitioner for hearing on 01.04.2002. The petitioner appeared and filled up the questionnaire and as mentioned earlier scratched out the same claiming that it was not necessary. He then filed affidavit dated 03.04.2002 commenting upon the procedure and functioning of the Committee. The Committee rejected the prayer made in the affidavit and again called him for hearing vide notice dated 22.04.2002. In reply, the petitioner once again demanded enquiry and the said request was rejected by the Committee. Then again on 20.06.2002, the petitioner was called for 15 hearing and that day he again filed affidavit dated 21.06.2002 commenting on the procedure adopted by the Committee. The same was rejected by the Committee. 11.9 Though the petitioner was repeatedly stating that the Committee did not follow the procedure as contemplated by the judgment of the Supreme Court in Madhuri Patil's case, Shri A.C. Dharmadhikari, learned Counsel for the petitioner, before us, could not and did not point out any procedural defect except the fact that he was denied opportunity to cross-examine Smt. Anjana Neware. From perusal of the record, we could not find any procedural defect in conducting the enquiry by the Committee worth noticing and vitiating the impugned order. It is in this backdrop, the hearing was ultimately concluded. 12. We have noticed that the Committee followed exactly the same procedure as observed by the Full Bench of this Court in Shilpa .v. State of Maharashtra. The Committee repeatedly adjourned the hearing only with a view to give an opportunity to the petitioner and to find out whether his claim is genuine and correct. The petitioner, however, was not cooperative and was interested in prolonging the hearing of the case for the reasons known to him. In this backdrop, when we perused the impugned order and the entire body of evidence, 16 including the documentary evidence, we are satisfied that the Committee has applied settled principles of law in the evaluation of evidence on record. 13. From bare perusal of the sequence of dates and events mentioned in the foregoing paragraphs, it is clear that the petitioner was not only non-cooperative but at every stage till we heard the writ petition today, he made all efforts to prolong the hearing before the Committee so also before this Court. His last effort to further prolong the hearing was the Civil Application filed by him seeking DNA test to prove his connection with Gond-Gowari Scheduled Tribe. It is against this backdrop, the submission of Shri A.C. Dharmadhikari that the petitioner was not given sufficient opportunity, the documents submitted by him were not examined by the Committee by applying the settled principles of law and it did not consider the petitioner's case in proper perspective must be rejected. 14. The petitioner's contention that the Vigilance Cell Enquiry was conducted by police officer and not by the Research Officer also deserves to be rejected outright. There is no dispute that the Research Officer was associated with the Vigilance Cell. The objection is that the actual field inquiry was conducted by the police officer and not by the Research Officer associated with the Vigilance Cell. We are unable to 17 persuade ourselves to accept the submission. Firstly, because this allegation is denied by the respondent-Committee, and secondly, in our view it is not correct to expect that while conducting the enquiry the Research Officer, who is associated with the Cell, `alone' has to do every thing. It is a team work and the report prepared is of the Vigilance Cell and not of the police officer. Merely because police officer also played some role in conducting the enquiry does not mean that the report of Vigilance Cell vitiates. 15. At this stage, we would also like to refer to paragraph 14 of the reply affidavit riled by respondent No.1-Committee dated 28th January, 2009. In this paragraph, the Committee has made reference to a letter addressed to the Deputy Director of the Committee dated 11.01.2002. It is stated on affidavit that in this letter, the petitioner had requested the Deputy Director that he may be included in the Special Backward Class category and validity certificate to that effect be issued to him. We have perused the said letter (Annexure-R1-II annexed to the reply affidavit). The petitioner in counter affidavit denied that he made such request to the Deputy Director of the Committee. He has, however, not placed any document in support thereof. It is pertinent to note that the petitioner has not denied issuance of the letter dated 11.01.2002. He has stated that the contents of the said letter are totally contrary to the contentions raised by the Committee in paragraph 14 of 18 their reply. The petitioner in the said letter has made reference to the visit of Deputy Director of the Committee along with one Maske and one Sawarkar, Research Officer on 11.01.2002 and has then stated that apropos to the discussion, the Deputy Director accepted that the injustice being done to the petitioner could be compensated by giving him a benefit of Special Backward Class category and hence, in the letter, he requested to issue validity certificate recognizing him as a member of the Special Backward Class category. 16. The petitioner has utterly failed to prove his ethnic linkage in spite of the opportunity given by the Committee and the petitioner in his callous and casual behaviour, as observed earlier, struck off the questionnaire form after filling up the same. Learned Counsel for the petitioner tried to