Affinity test may not be regarded as a litmus test for establishing the link of the applicant with a scheduled tribe: Bombay High Court

 on 20 04 2021 on 21 04 wp 3770 2017.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 3770 OF 20171.Satish Janardan Thakur )age about 51 years )Occupation : Service)2.Anirudh Satish Thakur )age about 20 years )Occupation: Student)Both residing at Block No.24)Shree Guru Siddheshwar Housing )Society Vishram Nagar Hotgi Road)Solapur) ...Petitioners Versus1.Scheduled Tribe Caste Certificate)Verification Committee Pune Division)Pune through its Member Secretary )2.The State of Maharashtra)through its Secretary )Tribal Development Department)Mantralaya Mumbai 400 032)3.Deputy Director of Education )Pune Region Pune)4.The Principal Walchand College)Ashok Chowk Solapur)...Respondents ......Mr.Shikur G. Kudle for the Petitioners.Mrs.A.A.Purav AGP for Respondent Nos. 1 to 3.…... Trupti 1 28 on 20 04 2021 on 21 04 wp 3770 2017.doc CORAM: R.D.DHANUKA & V. G. BISHT JJ.RESERVED ON : 2nd MARCH 2021PRONOUNCEMENT ON : 20th April 2021JUDGMENT :1.By this Petition filed under Article 226 of the Constitution ofIndia the petitioners have impugned the judgment and orderdated 15th June 2016 of the Scheduled Tribe Caste CertificateVerification Committee Pune Division Pune respondent No.1herein invalidating the claim of petitioners by issuing appropriatewrit order and seek that respondent No.1 be directed to validatethe tribal claim of the petitioners holding that they belong toThakar(Reserved Category).2.Facts necessary for the purpose of deciding this Writ Petitionare as under :Petitioner No.1 is working as a Senior Clerk in the office ofSuperintendent Pay and Provident Unit Solapur.Petitioner No.2 is son of petitioner No.1 and he is a collage goingTrupti 2 28 on 20 04 2021 on 21 04 wp 3770 2017.docboy. The petitioners submit that the Caste Certificate came to beissued on 28th August 2003 by the Competent Authority showingthat both the petitioners belong to Thakarand accordingly the Caste Certificates to thateffect came to be issued on 28th August 2003 by the CompetentAuthority. Subsequently they submitted the Certificates torespondent No.1 Scrutiny Committee for the purpose ofverification of their Tribe Claim along with necessary documentsbefore Vigilance Cell. These documents are as under :(a) Extract of General School Register of the father of petitioner No.1 namely Janardan Gopal Gaikwad inter alia showing his date and place of birth and Caste Trupti 7 28 on 20 04 2021 on 21 04 wp 3770 2017.doc(b)Extract of General School Register of the uncle of petitioner No.1Village Namuna No. 14 pertaining to father of petitioner No.1School Leaving Certificate of Satish Janardan Gaikwadi.e. petitioner No.1School Leaving Certificate of Satish Janardan Gaikwadi.e. petitioner No.1Affidavit of petitioner No.1 filed before the Executive Magistrate SolapurCaste Certificate of petitioner No.1 issued by Sub Divisional Officer Madha Division Kurdwadi on 28th August 2003Maharashtra Government Gazette in respect of changeof surname of petitioner No.1Caste Certificate of father of petitioner No.1 and grandfather of petitioner No.2 dated 24th June 1977 issued by Tehsildar and Executive Magistrate North SolapurSchool Leaving Certificate of father of petitioner No.1 and grandfather of petitioner No.2School Leaving Certificate of cousin grandfather of petitioner No.2 namely Vasant Gopalrao GaikwadSchool Leaving Certificate of cousin grandfather of petitioner No.2 namely Suryakant Gopal GaikwadSchool Leaving Certificate of cousin grandfather of petitioner No.2 namely Mahadeo Gopal GaikwadCertificates of validity issued by the Scheduled Tribe Certificate Scrutiny Committee Pune Division to :ChandrakantGopal GaikwadVasant GopalraoGaikwadand Mahadev Gopal Gaikwad(uncle of petitioner No.1). In all these School LeavingCertificates Caste is shown as Thakar and not Hindu Maratha asis indicated by the Scrutiny Committee.19.There are extracts of School General Register. The first suchextract at Serial No. 17 shows the name of Janardan GopalGaikwad with date of birth as 18th July 2023 and Caste Thakar.The column No. 7 of the said extract shows date of admission as19th July 1928. Second extract at serial Nos. 1 3 and 4 shows thenames of uncles of petitioner No.1 viz. Vasant Gopalaro Gaikwad Chandrakant Gopal Gaikwad and Mahadev Gopal Gaikwad withtheir date of birth as 2nd April 1937 20th July 1929 and 21stTrupti 13 28 on 20 04 2021 on 21 04 wp 3770 2017.docNovember 1934 respectively and Caste as Thakar. The columnNo.7 shows their date of admission as 20th July 1942 4th July 1934 and 4th July 1940 respectively.20.The entries in School Leaving Certificates of the father anduncles of petitioner No.1 being pre independene period it bear“great probative value” wherein they declared themselves to beThakar. The school record comparatively is not only oldest but itbeing the record pertaining to theirs’ admission to school prior toindependence it carry greatest probative evidentiary value.However the Scrutiny Committee adopted an erroneous view andreflected an improper approach to the issue in question. Therewas no proper scrutiny as far as School Leaving Certificates ofpetitioner No.1’s father and uncles are concerned.21. We now have the certificates of validity issued to MangeshArun GaikwadArun Chandrakant Gaikwad(relative) Sanjay Suryakant GaikwadRupesh RameshGaikwadand Ganesh Bholenath Gaikwadwas applicable to the case of presentpetitioners’ and therefore refused to acknowledge the certificatesof validity relied upon by the petitioners.23.The learned Counsel for the petitioners heavily criticized theapproach of Committee by submitting that the observations of theCommittee were ill founded inasmuch as those person wereneither heard nor their certificates of validity are invalidated tillthe time of recording of said observations. According to learnedCounsel the certificates of validity of the said relatives are very22010Mh.LJ 401Trupti 15 28 on 20 04 2021 on 21 04 wp 3770 2017.docmuch in operation. This statement of learned Counsel is notdisputed by the learned AGP.24.In case of Apoorva d o Vinay Nichaleit has beenheld by this Court that if the Committee is of the view that theearlier certificate is obtained by fraud it would not be bound tofollow the earlier caste validity certificate and Committee isentitled to refuse the caste claim and also in addition initiateproceedings for cancellation of the earlier order. Thus accordingto this Court if the Scrutiny Committee finds on the evidence thatvalidity of the certificate of such relation has been obtained byfraud then the Scrutiny Committee would not be bound to followthe said caste validity certificate and it would be entitled not onlyto refuse the caste claim but also at the same time would be atliberty to initiate proceedings for cancellation of the earliervalidity certificate.25.In case in hand as already noted the certificates of validityof the relatives of the petitioners are not only in very muchoperation but the same till date have not been invalidated orTrupti 16 28 on 20 04 2021 on 21 04 wp 3770 2017.doccancelled by the Scrutiny Committee after giving an opportunityto the concerned relatives of the petitioners. Therefore in ourconsidered opinion the reliance placed by the Scrutiny Committeeon the ratio laid down in Apoorva’s case was far fetched anddoes not in any manner further the stand taken by the ScrutinyCommittee.26.There is need to guard again such observation put on recordby the Scrutiny Committee. We have already pointed out how theCommittee blinked the contents of pre constitutional schoolrecords. Rather it was expected of Scrutiny Committee to bemore circumspect. We find instead approach of ScrutinyCommittee absurd and preposterous. The Scrutiny Committeecould not have proceeded in absence of concrete and clinchingevidence that too without offering a reasonable opportunity tothese relatives of petitioners whose certificates of validity it wasquestioning.27.We do not find of having unearthed such an evidence byScrutiny Committee which could have disentitled those relativesTrupti 17 28 on 20 04 2021 on 21 04 wp 3770 2017.docof their certificates of validity during said verification. There is noperceptible and tangible basis to opine that certificates of validityof named relations were obtained or secured by suppression offacts or by misrepresentation. The Scrutiny Committee ought tohave substantiated its belief by cogent and convincing evidence.28.Before placing the said observations on record the ScrutinyCommittee ought to have discerned and discovered that ingranting certificates of validity to the relations of petitioners vitalevidences had been ignored. It is only in that eventuality it couldhave decisively differed and observed that certificates of validitygranted to the relations of petitioners were procured bysuppression of facts or misrepresentation.29.There were similar obtaining facts in the case of Ms. SnehalDilip Gaikwadand Janardan Gopal Gaikwad(paternal uncle of petitioner’s father). It may be noted here thatthe above named persons are father and uncle of petitioner No.1Trupti 18 28 on 20 04 2021 on 21 04 wp 3770 2017.docin the present case. There were certificates of validity issued toArun Chandrakant Gaikwad Mangesh Arun Gaikwad SanjaySuryakant Gaikwad and Shrikant Mahadeo Gaikwad who arecousins of petitioner. Out of them Mangesh Arun Gaikwad andSanjay Suryakant Gaikwad happen to be cousin and cousinnephew respectively of present petitioner No.1.30.This Courtafter taking into consideration the evidence and inparticular the school records of the petitioner’s paternalgrandfather and that of uncle of petitioner’s father was of theopinion that the Scrutiny Committee kept out of considerationpre constitutional documents as well as caste validity certificatesof the blood relatives of the petitioner and thus was not justifiedin discarding this evidence. This Court further held that thepetitioner therein had proved that she belongs to Thakar tribe.Thus facts and the ratio laid down therein are squarely applicableto the case in hand.31.The Scrutiny Committee was also of the opinion that theTrupti 19 28 on 20 04 2021 on 21 04 wp 3770 2017.docpetitioners or their family members could not prove culturalaffinity vis a vis. Thakar Tribe. At paragraph No. 5 of theimpugned judgment it is noted that according to petitioners theycelebrate festival of Diwali their community God are Khandobaand deity Bhavani of Tulzapur traditionally their avocation is toperform marriages and to give and take wards in marriages to andfrom K Thakar Ka Thakar M Thakar Ma Thakar and Thakartribes. Thus according to Scrutiny Committee the lifestyle ofpetitioners’ community is actually different than genuine Thakartribe and hence they fail to prove cultural affinity test.32.In Anand Vs. Committee for Scrutiny and Verification ofTribe Claims and Ors3. the Hon’ble Apex Court held that whileapplying the affinity test a cautious approach has to be adopted.A few decades ago when the tribes were somewhat immune tothe cultural development happening around them the affinity testcould serve as a determinative factor however with the migration modernisation and contact with other communities thesecommunities tend to develop and adopt new traits which may not32012SCCTrupti 20 28 on 20 04 2021 on 21 04 wp 3770 2017.docessentially match with the traditional characteristics of a tribe andtherefore the affinity test may not be regarded as a litmus test forestablishing the link of the applicant with a scheduled tribe.33. The Apex Court in the said judgment also observed that thepetitioner could not be denied benefit on the ground that hispresent traits do not match his tribe’s peculiar anthropological andethnological traits deity rituals customs mode of marriage death ceremonies etc. and thus the affinity test can only be usedto corroborate the documentary evidence and should not be thesole criteria to reject the claim. 34.At the cost of repetition we reiterate that the Committee notonly overlooked the pre constitutional school records of father ofpetitioner No.1 and his relatives but also the caste certificatesissued in favour of the petitioners and caste validity certificates infavour of various relatives of the petitioners.35. In our considered view rejection of claim of petitioners’ onthe ground of failure to establish cultural affinity was absolutelyTrupti 21 28 on 20 04 2021 on 21 04 wp 3770 2017.docunwarranted in the facts and circumstances of case and thereforethat finding cannot be sustained. 36.The Scrutiny Committee then found that since beginning thepetitioners claimed that the original place of residence of theirfamily is Madha Taluka Madha District Solapur. Even schoolrecords of blood relations since 1916 prove that petitioners’ familymembers were permanent residents of Madha. According toScrutiny Committee before Area Restriction Removal Order of1976 came into force petitioners’ village Taluka Madha had noconnection even remotely to the areas where the tribe Thakarpresumed to have been resided. Similarly the petitioners’ couldnot produce any evidence to show that their ancestors migrated before the Removal of Area Restriction from the area of ThakarTribe to present place of residence.37.By an order dated 5th December 2009 Writ Petition No.21507 filed by Jaywant Dilip Pawar v. State of Maharashtraand Others came to be rejected on the premise that the petitionerhad failed to show that the real brother of the petitioner wasTrupti 22 28 on 20 04 2021 on 21 04 wp 3770 2017.docgranted validity certificate after applying affinity test andtherefore in the opinion of this Court the petitioner would not beentitled to rely on that certificate.38.The order of this Court dated 5th December 2009 wascarried in Appeal before the Hon’ble Apex Court. It would bepertinent to reproduce the order passed by the Hon’ble ApexCourt dated 8th March 2017 which reads thus : “1. The short point raised by learned counsel forthe appellants in these appeals is that after TheScheduled Castes and Scheduled Tribes Orders(Amendment) Act 1976 held that if the caste claim of the candidatehas been held to be belonging to Scheduled Tribe then other closeblood relatives cannot be denied the validity certificate. In thelight of ratio laid down by this Court in case of Apoorva d o VinayNichaleas the petitioners’ real cousins are already grantedcaste validity certificates as belonging to Thakar Scheduled Tribe in that view of the matter the present petitioners also deserve thesimilar certificates of validity.43. We may usefully draw attention to the judgment of thisTrupti 26 28 on 20 04 2021 on 21 04 wp 3770 2017.docCourtin case ofSmt. Jayshree d o Subhash Suryawanshi @ Smt. Jayshree w oNitin Thakur Versus The State of Maharashtra and others in WritPetition No. 22313 decided on 8th January 2021. Afteradverting to judgment of the Hon’ble Apex Court given in case ofJaywant Dilip Pawarthis Court held that the ScrutinyCommittee thus could not have relied upon the provisions of theBombay Reorganization Act 1960 while rejecting the caste claimof the petitioner on the ground of area restriction and the view ofthe Scrutiny Committee was found to be ex facie contrary to theprinciples of law laid down by the Supreme Court in the case ofJaywant Dilip Pawaris hereby quashed and set asideRule is made absolute in aforesaid terms.(iv) There shall be no order as to costs. (R.D.DHANUKA J.)Trupti 28 28 

Summary: Rejection of claim of petitioners on the ground of failure to establish cultural affinity is absolutely unwarranted such findings cannot be legally sustained. Nobody can be denied the benefit on the ground that their present traits do not match the tribe’s peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, etc. since affinity test can only be used to corroborate the documentary evidence and should not be the sole criteria to reject the claim. This remarkable judgment was passed by the Bombay High Court in the matter of SATISH JANARDAN THAKUR &amp; ONR. V ST CASTE CERTIFICATE VERIFICATION COMMITTEE [WRIT PETITION NO. 3770 OF 2017] by Honourable Justice R.D.Dhanuka and Justice V. G. Bisht. This Petition was filed under Article 226 challenging the impugned judgment and order of the Scheduled Tribe Caste Certificate Verification Committee, Pune Division. The Petitioner seeks direction for the respondents to validate his tribal claim and thus hold that he belongs to ‘Thakar’ (Reserved Category). The facts of the case in brief are, Petitioner No.1 is working as a Senior Clerk in the office of Superintendent Pay and Provident Unit in Solapur and Petitioner No.2 is his who is a college-going boy. The petitioners have submitted that the Caste Certificate was issued in 2003 by the Competent Authority that clearly depicted that both of them belong to Thakar. He submitted his Caste Certificate in 2007 to respondents and his son submitted it in 2013 for verification of the tribe claim along with all necessary documents in support of their tribe claim. However, respondent No.1 rejected the tribe claim. According to petitioners, the school records of the father show his caste as Hindu- Thakar and the same is the case with his relatives. However, evidence is much prior to the Presidential Order of the year 1950 and thus, the said evidence has got the probative value but the same was not taken into consideration by the committee. The certificates of validity of the relatives of the petitioners are not only in very much operation but the same till date have not been invalidated or canceled by the Scrutiny Committee after giving an opportunity to the concerned relatives of the petitioners. The HC observed that the “Approach of Scrutiny Committee is absurd and preposterous since they blinked the contents of pre-constitutional school records. The Scrutiny Committee could not have proceeded in absence of concrete and clinching evidence, that too without offering a reasonable opportunity to these relatives of petitioners whose certificates of validity it was questioning. There is no perceptible and tangible basis to opine that certificates of validity of named relations were obtained or secured by suppression of facts or by misrepresentation.” In Anand Vs. Committee for Scrutiny and Verification of Tribe Claims and Ors, the Hon’ble Apex Court held that while applying the affinity test, a cautious approach has to be adopted. Thus, the HC stated that “the petitioner could not be denied the benefit on the ground that his present traits do not match his tribe’s peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, etc., and thus the affinity test can only be used to corroborate the documentary evidence and should not be the sole criteria to reject the claim.” Also, the HC opined that “if the caste claim of the candidate has been held to be belonging to Scheduled Tribe, then other close blood relatives cannot be denied the validity certificate. In the light of the ratio laid down by this Court in the case of Apoorva d/o Vinay Nichale as the petitioners’ real cousins are already granted caste validity certificates as belonging to Thakar- Scheduled Tribe, in that view of the matter, the present petitioners also deserve the similar certificates of validity.”