# MAH. ADIWASI THAKUR JAMAT SWARAKSHAN SAMITI v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2023] 3 S.C.R. 1100
- **Court:** Supreme Court of India
- **Decided:** 2023-03-24
- **Case number:** Civil Appeal No. 2502 of 2022
- **Bench:** Sanjay Kishan Kaul, Abhay S. Oka, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mah-adiwasi-thakur-jamat-swarakshan-samiti-v-the-state-of-maharashtra-ors-36942
- **Pages:** 34

## Headnote

Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 - ss. 2, 3, 4, 5, 6, 9
- Maharashtra Scheduled Tribes (Regulation of issuance and
verification of) Certificate Rules, 2003 - rr. 10, 12 - Maharashtra
Scheduled Castes, De-notified Tribes, (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
(Regulation of issuance and verification of) Caste Certificate Rules,
2012 - Whether paramount importance should be given to the
affinity test while adjudicating upon a caste claim on the basis of a
caste certificate issued by a Competent Authority - In other words,
the question is whether the affinity test is a litmus test for deciding
a caste claim - Held: Only when the Scrutiny Committee after holding
an enquiry is not satisfied with the material produced by the
applicant, the case can be referred to Vigilance Cell - While referring
the case to Vigilance Cell, the Scrutiny Committee must record brief
reasons for coming to the conclusion that it is not satisfied with the
material produced by the applicant - Only after a case is referred
to the Vigilance Cell for making enquiry, an occasion for the conduct
of affinity test will arise - 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 caste
validity claim - In short, affinity test is not a litmus test to decide a
caste claim and is not an essential part in the process of the
determination of correctness of a caste or tribe claim in every case.
Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
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1101
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 - Maharashtra
Scheduled Tribes (Regulation of Issuance and verification of)
Certificate Rules, 2003 - Maharashtra Scheduled Castes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Rules, 2012 - Whether Caste
Scrutiny Committee performs quasi-judicial function - Held :
Scrutiny Committee under the 2000 Act has been entrusted with
various powers of the Civil Court under the Code of Civil Procedure,
1908 - The powers include a power to enforce the attendance of
any witness, to receive evidence on affidavits, to issue commissions
for the examination of witnesses or documents etc - The scheme of
the 2000 Act and both SC and ST Rules provides for the Scrutiny
Committee holding an enquiry on the caste claim of the applicant,
if necessary, after examining the applicant on oath, recording
evidence of witnesses and calling for documents and records etc. -
Scrutiny Committee is expected to record reasons for granting and
rejecting the prayer for issue of caste validity certificates - Thus,
the Scrutiny Committee has all the trappings of a quasi-judicial
authority.
Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 - Maharashtra
Scheduled Tribes (Regulation of Issuance and verification of)
Certificate Rules, 2003 - Maharashtra Scheduled Castes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Rules, 2012 -There was a
conflict of views expressed in Vijakumar v. State of Maharashtra &
Ors. and Anand v. Committee for Scrutiny and Verification of Tribe
Claims & Ors. regarding recourse to affinity test - Held: In view of
the fact that the

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SUPREME COURT REPORTS
[2023] 3 S.C.R.
 [2023] 3 S.C.R. 1100
1100
MAH. ADIWASI THAKUR JAMAT SWARAKSHAN SAMITI
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 2502 of 2022)
MARCH 24, 2023
[SANJAY KISHAN KAUL, ABHAY S. OKA AND
MANOJ MISRA, JJ.]
Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 - ss. 2, 3, 4, 5, 6, 9
- Maharashtra Scheduled Tribes (Regulation of issuance and
verification of) Certificate Rules, 2003 - rr. 10, 12 - Maharashtra
Scheduled Castes, De-notified Tribes, (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
(Regulation of issuance and verification of) Caste Certificate Rules,
2012 - Whether paramount importance should be given to the
affinity test while adjudicating upon a caste claim on the basis of a
caste certificate issued by a Competent Authority - In other words,
the question is whether the affinity test is a litmus test for deciding
a caste claim - Held: Only when the Scrutiny Committee after holding
an enquiry is not satisfied with the material produced by the
applicant, the case can be referred to Vigilance Cell - While referring
the case to Vigilance Cell, the Scrutiny Committee must record brief
reasons for coming to the conclusion that it is not satisfied with the
material produced by the applicant - Only after a case is referred
to the Vigilance Cell for making enquiry, an occasion for the conduct
of affinity test will arise - 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 caste
validity claim - In short, affinity test is not a litmus test to decide a
caste claim and is not an essential part in the process of the
determination of correctness of a caste or tribe claim in every case.
Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
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1101
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 - Maharashtra
Scheduled Tribes (Regulation of Issuance and verification of)
Certificate Rules, 2003 - Maharashtra Scheduled Castes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Rules, 2012 - Whether Caste
Scrutiny Committee performs quasi-judicial function - Held :
Scrutiny Committee under the 2000 Act has been entrusted with
various powers of the Civil Court under the Code of Civil Procedure,
1908 - The powers include a power to enforce the attendance of
any witness, to receive evidence on affidavits, to issue commissions
for the examination of witnesses or documents etc - The scheme of
the 2000 Act and both SC and ST Rules provides for the Scrutiny
Committee holding an enquiry on the caste claim of the applicant,
if necessary, after examining the applicant on oath, recording
evidence of witnesses and calling for documents and records etc. -
Scrutiny Committee is expected to record reasons for granting and
rejecting the prayer for issue of caste validity certificates - Thus,
the Scrutiny Committee has all the trappings of a quasi-judicial
authority.
Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 - Maharashtra
Scheduled Tribes (Regulation of Issuance and verification of)
Certificate Rules, 2003 - Maharashtra Scheduled Castes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Rules, 2012 -There was a
conflict of views expressed in Vijakumar v. State of Maharashtra &
Ors. and Anand v. Committee for Scrutiny and Verification of Tribe
Claims & Ors. regarding recourse to affinity test - Held: In view of
the fact that the 2000 Act and Rules were not considered, the decision
in the case of Vijakumar is not a binding precedent for the
proposition that in every case, the Scrutiny Committee is required to
take recourse to the affinity test by referring the case to the Vigilance
Cell - This Court record similar reasons as held in the case of Anand
that affinity test will not always be mandatory and/or conclusive.
MAH. ADIWASI THAKUR JAMAT SWARAKSHAN SAMITI v.
THE STATE OF MAHARASHTRA
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
Answering the reference, the Court
HELD: 1. The 2000 Act has introduced a two-tier system
for the verification of caste claims. In view of the express language
used by sub-section (2) of Section 4, the caste certificate issued
by the Competent Authority does not conclusively establish the
caste claim of the applicant. The person to whom the caste
certificate is granted by the Competent Authority cannot claim
that his caste status has been established. The caste certificate
issued by Competent Authority becomes conclusive evidence of
the caste stated therein only after a detailed enquiry as
contemplated by the 2000 Act and rules framed thereunder is
made by the Scrutiny Committee and the certificate is validated.
Therefore, when an application made under Section 3 for the grant
of a caste certificate is considered by the Competent Authority,
very detailed scrutiny of material produced by the applicant is
not contemplated. What is contemplated is prima facie satisfaction
of the genuineness of the caste claim and on the basis of such
satisfaction that a caste certificate as contemplated by sub-section
(1) of Section 4 can be issued. Therefore, sub-section (1) of Section
4 specifically requires the Competent Authority to record reasons
for rejecting the application but there is no such requirement
incorporated of giving reasons while granting a caste certificate.
However, the Caste Scrutiny Committee is expected to record
reasons both for validating and not validating the caste certificate.
Sub-rule (6) of Rule 4 of the ST Rules provides that the
Competent Authority shall verify the documents produced by the
applicant with the original documents and if satisfied with the
correctness of the information, documents and evidence furnished
by the applicant, it shall issue a Scheduled Tribe certificate within
15 days from the date of receipt of the application. The time limit
fixed under the said Rule is also a pointer which suggests that
the enquiry to be made by the Competent Authority is a summary
enquiry and a detailed enquiry is not contemplated. The mandate
of issuing caste certificates within 15 days cannot be accomplished
if the Competent Authority is to hold a detailed enquiry on par
with the one which is required to be held by the Scrutiny
Committee. The law contemplates very detailed scrutiny of the
caste claim by the Scrutiny Committee. If both the Competent
Authority and the Caste Scrutiny Committee were to make the
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same degree of scrutiny and detailed enquiry into caste claims,
the very object of the two-tier scrutiny will be frustrated. Section
8 provides that the burden of proving a caste claim before the
Competent Authority and the Scrutiny Committee is on the
applicant. For discharging the said burden before the Competent
Authority, it is enough if the applicant produces prima facie
material to show that his caste claim is genuine. The burden put
by Section 8 on the applicant to prove his caste status before the
Scrutiny Committee is much higher than the burden which he is
required to discharge before the Competent Authority. [Paras
14, 15][1118-F-H; 1119-A-G]
2. Sub-rule (2) of Rule 12 of the ST Rules clearly provides
that only if the Scrutiny Committee is not satisfied with the
documentary evidence produced by the applicant, it shall forward
the application to the Vigilance Cell for conducting the school,
home and other enquiry. Therefore, 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 applicant is required and therefore, the application of mind
must be reflected in the order sheets of the Scrutiny Committee.
[Para 19][1123-B-D]
3. The Scrutiny Committee may be satisfied that the caste
validity certificate relied upon by the applicant has been issued
after making a lawful enquiry. But if the Scrutiny Committee is of
the view that the applicant has not clearly established that the
person to whom caste validity certificate produced on record has
been granted is his blood relative, in terms of sub-rule (2) of
Rule 12 of the ST Rules, the Caste Scrutiny Committee will have
to refer the case for conducting an enquiry through Vigilance Cell.
In such a case, the Vigilance Cell can be directed by the Scrutiny
Committee to conduct an enquiry limited to the relationship
MAH. ADIWASI THAKUR JAMAT SWARAKSHAN SAMITI v.
THE STATE OF MAHARASHTRA
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[2023] 3 S.C.R.
claimed by the applicant with the person in whose favour the caste
validity certificate has been issued. If, on the basis of the report
of the Vigilance Cell, the Scrutiny Committee is satisfied that the
person in whose favour caste validity certificate has been issued
is a blood relative of the applicant and lawful enquiry has been
conducted before issuing the validity certificate, the Scrutiny
Committee will have to issue validity certificate even if the
applicant does not satisfy the affinity test. [Para 23][1125-C-G]
AFFINITY TEST
4. 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. If the
applicant has stayed in bigger urban areas along with his family
for decades or if his family has stayed in such urban areas for
decades, the applicant may not have knowledge of the aforesaid
facts. It is true that the Vigilance Cell can also question the
parents of the applicant. But in a given case, even the parents
may be unaware for the reason that for several years they have
been staying in bigger urban areas. On the other hand, a person
may not belong to the particular tribe, but he may have a good
knowledge about the aforesaid aspects. Therefore, the learned
senior counsel, is right when he submitted that the affinity test
cannot be applied as a litmus test. This Court may note here 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. [Para 25][1126-E-G]
WHETHER
CASTE
SCRUTINY
COMMITTEE
PERFORMS QUASI-JUDICIAL FUNCTION
5. On a conjoint reading of the 2000 Act as well as ST and
SC Rules framed thereunder, it is impossible to conclude that
the Scrutiny Committee discharges only administrative functions.
The Scrutiny Committee under the 2000 Act has been entrusted
with various powers of the Civil Court under the Code of Civil
Procedure, 1908. The powers include a power to enforce the
attendance of any witness, to receive evidence on affidavits, to
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issue commissions for the examination of witnesses or documents
etc. The scheme of the 2000 Act and both SC and ST Rules
provides for the Scrutiny Committee holding an enquiry on the
caste claim of the applicant, if necessary, after examining the
applicant on oath, recording evidence of witnesses and calling
for documents and records etc. The Scrutiny Committee is
expected to record reasons for granting and rejecting the prayer
for issue of caste validity certificates. Thus, the Scrutiny
Committee has all the trappings of a quasi-judicial authority. [Para
28][1128-C-F]
DECISIONS IN THE CASES OF VIJAKUMAR &
ANAND
6. In view of the fact that the 2000 Act and Rules were not
considered, the decision in the case of Vijakumar is certainly not
a binding precedent for the proposition that in every case, the
Scrutiny Committee is required to take recourse to the affinity
test by referring the case to the Vigilance Cell. [Para 29][1129C-D]
7. The decision in the case of Anand in paragraphs 4 and 5
specifically refers to Rule 11 and 12(2) of the ST Rules. This
Court recorded similar reasons earlier as held in paragraph 22 of
Anand for coming to the conclusion that affinity test will not always
be mandatory and/or conclusive. [Para 30][1129-D; 1130-F-G]
8. Now, coming to the impugned Judgment in Shilpa Vishnu
Thakur's case. The Full Bench does not lay down that in every
case where the Scrutiny Committee is dealing with a Scheduled
Tribe claim, a reference must be made to the Vigilance Cell. In
clause (ii) (a) of paragraph 40, the Full Bench records that the
Scrutiny Committee must have regard to the entire body of
evidence, including on the question as to whether the applicant
has satisfied the affinity test. As held earlier, the question of taking
recourse to the affinity test will arise only if the case is referred
to Vigilance Cell. In fact, in clause (b) of paragraph 40, the Full
Bench holds that even if an applicant does not have any
documentary evidence it will not ipso facto result into invalidation
of the caste claim. The reason is that in such a case, sub-rule (2)
of Rule 12 will apply and the Vigilance Cell will have to hold an
MAH. ADIWASI THAKUR JAMAT SWARAKSHAN SAMITI v.
THE STATE OF MAHARASHTRA
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
enquiry including affinity test. Even in such a case, affinity test
will not be conclusive either way as held in clause (2) of paragraph
20 in Anand's case. In clause (c) of the same paragraph, the Full
Bench of the High Court also holds that even if the applicant
partially satisfies the affinity test, depending upon the nature of
the evidence on record, the Scrutiny Committee has power to
validate the claim. Thus, even clause (c) proceeds on the footing
that the affinity test is not conclusive. [Para 34][1132-D-H; 1133A]
CONCLUSIONS
9. Thus, to conclude, this Court holds that:
(a) Only when the Scrutiny Committee after holding an
enquiry is not satisfied with the material produced by the applicant,
the case can be referred to Vigilance Cell. While referring the
case to Vigilance Cell, the Scrutiny Committee must record brief
reasons for coming to the conclusion that it is not satisfied with
the material produced by the applicant. Only after a case is
referred to the Vigilance Cell for making enquiry, an occasion for
the conduct of affinity test will arise.
(b) For the reasons recorded, affinity test cannot 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 caste
validity claim;
(c) In short, affinity test is not a litmus test to decide a
caste claim and is not an essential part in the process of the
determination of correctness of a caste or tribe claim in every
case. [Para 36][1133-C-G]
Kumari
Madhuri
Patil
and
Another
v.
Addl.Commissioner, Tribal Development & Others
(1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; Anand v.
Committee for Scrutiny and Verification of Tribe Claims
& Ors. (2012) 1 SCC 113 : [2011] 15 SCR 386; District
Collector, Satara & Anr. v. Mangesh Nivrutti Kashid
(2019) 10 SCC 166 : [2019] 15 SCR 685 - relied on.
Palghat Jilla Thandan Samudhaya Samrakshna Samithi
& Anr. v. State of Kerala (1994) 1 SCC 359 : [1993] 3
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Suppl. SCR 872; State of Maharashtra & Ors. v. Ravi
Prakash Babulalsing Parmar & Anr. (2007) 1 SCC 80
: [2006] 8 Suppl. SCR 105; Dayaram v. Sudhir Batham
& Ors. (2012) 1 SCC 333 : [2011] 15 SCR 1092; J.
Chitra v. District Collector & Chairman, State Level
Vigilance Committee, Tamil Nadu & Ors. (2021) 9 SCC
811 - referred to.
Vijakumar v. State of Maharashtra & Ors. (2010) 14
SCC 489 - Not a binding precedent.
Shilpa Vishnu Thakur v. State of Maharashtra 2009 (3)
Mh.LJ (F.B) 995; Apoorva d/o Vinay Nichale v.
Divisional Committee 2010 (6) Mh.LJ - referred to.
Case Law Reference
[1994] 3 Suppl. SCR 50
relied on
Para 2
[2011] 15 SCR 386
relied on
Para 4
[2019] 15 SCR 685
relied on
Para 6
[1993] 3 Suppl. SCR 872
referred to
Para 7
[2006] 8 Suppl. SCR 105
referred to
Para 8
[2011] 15 SCR 1092
referred to
Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2502
of 2022.
From the Judgment and Order dated 07.05.2009 of the High Court
of Judicature at Bombay in Writ Petition No.9659 of 2007.
With
Civil Appeal Nos.2772, 2536-2537, 2533, 2532, 2534, 2518, 2517,
2525, 2520, 2527, 2526, 2538, 2541, 2535, 2546 of 2022, 3922-3923 of
2019, 2544-2545, 2512, 2543, 2542, 2529, 2540, 2539, 2503, 2514, 2519,
2524, 2510, 2506, 2509, 2508, 2507 of 2022, 8603, 8605 of 2010, 2504,
2505, 2511, 2530, 2522, 2516, 2521, 2531, 2523, 2528, 2513 of 2022,
9335 of 2013 and 2515 of 2022.
Ms. Madhvi Divan, A.S.G., Mrs. V. Mohana, Ravi K. Deshpande,
Shekhar Naphade, Ravi Prakash Mehrotra, Sanjay R. Hegde, Mrs.
Meenakshi Arora, Shyam Divan, R. Bala, M. N. Rao, Sr. Advs., Rajat
Joseph, Vivek C. Solshe, Varun V. Solshe, Anjani Kumar Jha, Abhijeet
Sinha, M/s. Lambat and Associates, Shashwat Goel, Satyajit A. Desai,
Ms. Anagha S. Desai, Vijay Raj Singh Chauhan, Anshu Deshpande,
MAH. ADIWASI THAKUR JAMAT SWARAKSHAN SAMITI v.
THE STATE OF MAHARASHTRA
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
Siddharth Gautam, Gajanan N. Tirthkar, Rameshwar Prasad Goyal, Gagan
Sanghi, Ms. Ashwariya Dash, Dr. Prashant Pratap, Chander Shekhar
Ashri, Amlan Kumar Ghosh, Ms. Preeti Rane, Ashish Pandey, Apoorv
Srivastava, Shirish K. Deshpande, Ms. Rucha Pravin Mandlik, Mohit
Gautam, Shahrukh Ali, Ananta Ramteke, Rahul Sharma, Sudhanshu S.
Choudhari, Mahesh P. Shinde, Ms. Rucha A. Pande, M. Veeraragavan,
Ms. Farah Hashmi, Ms. Aishwarya Dash, R. P. Gupta, Anand Sukumar,
Kshitij Mittal, S. Sukumaran, Bhupesh Kumar Pathak, Ms. Meera Mathur,
Nishant Ramakantrao Katneshwarkar, Sachin Patil, Ms. Mayuri
Raghuvanshi, Vyom Raghuvanshi, Ms. Akanksha Rathore, Yogesh Malik,
Ravindra Keshavrao Adsure, Pravin Patil, Sidheshwar Namdev Biradar,
Yash Prashant Sonavane, Siddharath Dharmadhikari, Aaditya Aniruddha
Pande, Bharat Bagla, Ms. Kirti Dadheech, Nikilesh Ramachandran,
Gurmeet Singh Makker, Ms. Vimla Sinha, Anmol Chandan, Uday Khanna,
Pratik R. Bombarde, Subhash Kumar, Dharama Datta Verma, Abhishek
Kumar, Gopal Balwant Sathe, M/s. Black & White Solicitors, Suhaskumar
Kadam, Bhargava V. Desai, Rahul Gupta, Siddhartha Chowdhury, Utkarsh
Vats, Deepanshu, Ms. Bharti Tyagi, J.N. Singh, Saurabh Mishra, Mrs.
Sadhna Singh, Abhishek Singh, Ms. Priya Kaushik, Sudarsh Menon,
Samarendra Beura, Rajesh Rathore, Ms. Usha Rani Pradhan, Ajai
Kumar Bhatia, Chirag M. Shroff, Ms. Pallavi Sharma, Gaurav Agrawal,
Amol B. Karande, Mahesh B Karande, Narender Rao Thaneer, Ms.
Jaswanti, Ms. Aaina Varma, Nitin Meshram, Narayan Jambhule, Ritesh
Patil, Ranbir Singh Yadav, Abhijit S. Kamble, Hitesh Kumar Sharma, S.
K. Rajora, Ms. Niharika Dewivedi, Narender Pal Sharma, Amit Kumar
Chawla, Ravish Kumar Goyal, Madhvi S. Sawnt, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
PRELUDE
1. Pursuant to Article 342 of the Constitution of India, a list of
Scheduled Tribes was notified by the Constitution (Scheduled Tribes)
Order, 1950 (for short 'the ST Order'). By an Act of Parliament of
1976, the ST Order was amended. Part IX of the Third Schedule to the
1976 Act contains a list of notified Scheduled Tribes for the State of
Maharashtra. At Entry no.44 in the Maharashtra List, the following castes
have been notified as Scheduled Tribes:-
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"Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur,
Ma Thakar".
2. Various issues concerning the procedure to be followed for the
determination of caste claims arose in a large number of cases. In the
case of Kumari Madhuri Patil and Another v. Addl. Commissioner,
Tribal Development & Others1, this Court noted that it was necessary
to streamline the procedure for issuance of social status certificates,
their scrutiny and their approval. The need to lay down procedural
guidelines was felt as several cases were noticed where candidates on
the basis of false social status certificates obtained admissions to
educational institutions which necessarily had the effect of depriving
admissions to genuine candidates belonging to Scheduled Castes or
Scheduled Tribes. There was no law in force at that time laying down
the procedure for the verification of caste status. Therefore, very
exhaustive guidelines were laid down in paragraph 13 of the said decision.
The relevant part of Paragraph 13 of the said decision reads thus:
"13. The admission wrongly gained or appointment wrongly
obtained on the basis of false social status certificate necessarily
has the effect of depriving the genuine Scheduled Castes or
Scheduled Tribes or OBC candidates as enjoined in the Constitution
of the benefits conferred on them by the Constitution. The genuine
candidates are also denied admission to educational institutions or
appointments to office or posts under a State for want of social
status certificate. The ineligible or spurious persons who falsely
gained entry resort to dilatory tactics and create hurdles in
completion of the inquiries by the Scrutiny Committee. It is true
that the applications for admission to educational institutions are
generally made by a parent, since on that date many a time the
student may be a minor. It is the parent or the guardian who may
play fraud claiming false status certificate. It is, therefore,
necessary that the certificates issued are scrutinised at the earliest
and with utmost expedition and promptitude. For that purpose,
it is necessary to streamline the procedure for the issuance
of social status certificates, their scrutiny and their approval,
which may be the following:
1. The application for grant of social status certificate shall be
made to the Revenue Sub-Divisional Officer and Deputy Collector
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or Deputy Commissioner and the certificate shall be issued by
such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be,
shall file an affidavit duly sworn and attested by a competent
gazetted officer or non-gazetted officer with particulars of castes
and sub-castes, tribe, tribal community, parts or groups of tribes
or tribal communities, the place from which he originally hails
from and other particulars as may be prescribed by the Directorate
concerned.
3. Application for verification of the caste certificate by the Scrutiny
Committee shall be filed at least six months in advance before
seeking admission into educational institution or an appointment
to a post.
4. All the State Governments shall constitute a Committee of three
officers, namely, (I) an Additional or Joint Secretary or any officer
high-er in rank of the Director of the department concerned, (II)
the Director, Social Welfare/Tribal Welfare/Backward Class
Welfare, as the case may be, and (III) in the case of Scheduled
Castes another officer who has intimate knowledge in the
verification and issuance of the social status certificates. In the
case of the Scheduled Tribes, the Research Officer who has
intimate knowledge in identifying the tribes, tribal communities,
parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a Vigilance Cell
consisting of Senior Deputy Superintendent of Police in
over-all charge and such number of Police Inspectors to
investigate into the social status claims. The Inspector would
go to the local place of residence and original place from which
the candidate hails and usually resides or in case of migration to
the town or city, the place from which he originally hailed from.
The vigilance officer should personally verify and collect all the
facts of the social status claimed by the candidate or the parent or
guardian, as the case may be. He should also examine the school
records, birth registration, if any.He should also examine the
parent, guardian or the candidate in relation to their caste
etc. or such other persons who have knowledge of the social
status of the candidate and then submit a report to the
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Directorate together with all particulars as envisaged in
the pro forma, in particular, of the Scheduled Tribes relating
to their peculiar anthropological and ethnological traits,
deity, rituals, customs, mode of marriage, death ceremonies,
method of burial of dead bodies etc. by the castes or tribes
or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the
vigilance officer if he found the claim for social status to be "not
genuine" or 'doubtful' or spurious or falsely or wrongly claimed,
the Director concerned should issue show-cause notice supplying
a copy of the report of the vigilance officer to the candidate by a
registered post with acknowledgement due or through the head
of the educational institution concerned in which the candidate is
studying or employed. The notice should indicate that the
representation or reply, if any, would be made within two weeks
from the date of the receipt of the notice and in no case on request
not more than 30 days from the date of the receipt of the notice.
In case, the candidate seeks for an opportunity of hearing and
claims an inquiry to be made in that behalf, the Director on receipt
of such representation/reply shall convene the committee and the
Joint/Additional Secretary as Chairperson who shall give
reasonable opportunity to the candidate/parent/guardian to adduce
all evidence in support of their claim. A public notice by beat of
drum or any other convenient mode may be published in the village
or locality and if any person or association opposes such a claim,
an opportunity to adduce evidence may be given to him/it. After
giving such opportunity either in person or through counsel, the
Committee may make such inquiry as it deems expedient and
consider the claims vis-à-vis the objections raised by the candidate
or opponent and pass an appropriate order with brief reasons in
support thereof.
7. In case the report is in favour of the candidate and found to be
genuine and true, no further action need be taken except where
the report or the particulars given are procured or found to be
false or fraudulently obtained and in the latter event the same
procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/
guardian also in case candidate is minor to appear before the
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Committee with all evidence in his or their support of the claim
for the social status certificates.
9. ...................
10. .................
11. The order passed by the Committee shall be final and conclusive
only subject to the proceedings under Article 226 of the
Constitution.
12. No suit or other proceedings before any other authority should
lie."
(emphasis added)
3. The aforesaid guidelines were formulated obviously in the
exercise of jurisdiction under Article 142 of the Constitution as this Court
found that there was no legislation operating in the field. So far as the
State of Maharashtra is concerned, with effect from 18th October 2001,
the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes,
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special
Backward Category (Regulation of Issuance and Verification of) Caste
Certificate Act, 2000 (for short 'the 2000 Act') was brought into force.
The 2000 Act contains a very elaborate mechanism for regulating the
issue and verification of caste certificates to persons belonging to various
categories of backward classes. A two-level mechanism was provided.
The first level is of the Competent Authority issuing a caste certificate
which is valid only subject to verification and grant of validity certificate
by the Scrutiny Committee constituted under the 2000 Act. Power is
vested in the Scrutiny Committee constituted under Section 6 to verify
the correctness of the caste certificates issued by the Competent
Authority. Section 9 confers powers on the Competent Authority and
the Scrutiny Committee of a civil court of summoning and enforcing the
attendance of witnesses, requiring the discovery and inspection of
documents, receiving evidence on affidavits, requisitioning any public
record or a copy thereof from any Court or office and issuing Commissions
for the examination of witnesses or production of documents. Rulemaking power under the 2000 Act was exercised by framing the
Maharashtra Scheduled Tribes (Regulation of Issuance and verification
of) Certificate Rules, 2003 (for short "the ST Rules"). Similarly, the
Maharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes and Special Backward
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Category (Regulation of Issuance and Verification of) Caste Certificate
Rules, 2012 (for short 'the SC Rules') were framed. Elaborate provisions
for the constitution of the Scrutiny Committee as well as the procedure
to be followed by the Competent Authority, and the Scrutiny Committee
have been laid down by the Rules applicable to both categories. Rule 10
and Rule 12 of the ST Rules provide for the constitution of Vigilance
Cells to assist the Scrutiny Committees for Scheduled Castes and
Scheduled Tribes respectively for conducting an enquiry. The Vigilance
Cell established under ST Rules consists of a Senior Deputy
Superintendent of Police, Police Inspectors, Police Constables to assist
the Police Inspector and a Research Officer. The SC Rules specifically
provide for the Vigilance Cell to conduct affinity test. There is some
controversy about whether the vigilance cell constituted under the ST
Rules has a power to conduct affinity test. We are dealing with the said
issue. The Vigilance Cell is required to enquire about anthropological
and ethnological traits, deities, rituals, customs, mode of marriage, death
ceremonies, method of disposal of dead bodies etc. by the castes or
tribes or tribal communities concerned. As a part of the affinity test, a
candidate who has obtained a caste certificate from Competent Authority
is tested to ascertain whether he has knowledge about the aforesaid
factors pertaining to the particular caste/tribe.
CONTROVERSY
4. By the order dated 24th March 2022, the present group of cases
was referred to a larger Bench. The challenge in the lead case (Civil
Appeal No. 2502 of 2022) is to a decision of a Full Bench of the Bombay
High Court in the case of Shilpa Vishnu Thakurv. State of
Maharashtra2. The Full Bench of the Bombay High Court has interpreted
the provisions of the 2000 Act as well as ST Rules. The impugned
judgment discusses and lays down various procedural aspects to be
followed by the Scrutiny Committee. The Full Bench of the Bombay
High Court has held that the affinity test is an integral part of the
determination of the correctness of the caste claim. In the order dated
24th March 2022, a Bench of this Court noted that there was a conflict
of views expressed in two decisions of coordinate Benches of this Court.
The first case is of Vijakumar v. State of Maharashtra & Ors.3 and
the second case is of Anand v. Committee for Scrutiny and
2 2009 (3) Mh.LJ (F.B) 995
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Verification of Tribe Claims & Ors.4. In paragraph 9 of the decision
in the case of Vijakumar3, this Court held that if a candidate fails the
affinity test at any stage, a caste validity certificate cannot be granted to
him. In the case of Anand4, it was held that the affinity test is not the
only criteria for deciding a caste claim based on a caste certificate issued
by a Competent Authority. It was held that it can be used to corroborate
the documentary evidence. The question to be decided is whether
paramount importance should be given to the affinity test while
adjudicating upon a caste claim on the basis of a caste certificate issued
by a Competent Authority. In other words, the question is whether the
affinity test is a litmus test for deciding a caste claim.
CONTENTIONS OF THE PARTIES
5. Main submissions have been made on behalf of the appellants
in Civil Appeal No. 2502 of 2022 by Shri Shekhar Naphade, learned
senior counsel. He has taken us through the 2000 Act and ST Rules.
Relying upon the decision in the case of Kumari Madhuri Patil1, he
urged that the documents which pertain to the pre-Constitution period
have the greatest probative value. He submits that if such documents in
support of caste claim are presented before the Scrutiny Committee,
and if the same are found to be relevant and genuine, there is no occasion
for the Scrutiny Committee to order an enquiry through Vigilance Cell.
Similarly, if blood relatives of the person applying for verification before
the Caste Scrutiny Committee have been granted caste validity certificates,
no further enquiry by the Scrutiny Committee is called for. In both cases,
it is the duty of the Caste Scrutiny Committee to validate the caste
certificate. He invited our attention to Rule 12 of the ST Rules which
lays down the procedure to be followed by the Scrutiny Committee. He
pointed out that sub-rule (2) provides that only if Scrutiny Committee is
not satisfied with the documentary evidence produced by the applicant,
it can order enquiry through Vigilance Cell. He pointed out that the
question of the conduct of the affinity test arises only after the case is
forwarded to the Vigilance Cell after the Scrutiny Committee comes to
the conclusion that the documents produced by the applicant are not
sufficient to prove the caste claim. He submitted that the Scrutiny
Committee could not mechanically refer a case to the Vigilance Cell
without recording satisfaction that the documents produced by the
applicant were not sufficient to validate the casteclaim.
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6. He relied upon a decision of the Bombay High Court in the
case of Apoorva d/o Vinay Nichale v. Divisional Committee5. He
submitted that if an applicant successfully establishes his caste claim on
the basis of documents relating to the pre-Constitution period or
documents having probative value or a caste validity certificate granted
to his blood relative, it is not necessary to apply the affinity test. In short,
his submission is that the affinity test is not a litmus test. He submitted
that the view taken by this Court in the case of Anand4is based on the
interpretation of the 2000 Act and the ST Rules. He pointed out that
Vijakumar's3 case has been decided by this Court before the ST Rules
came into force. He would urge that there are no reasons recorded in
the decision to suggest that the affinity test in every case is mandatory.
The learned counsel pressed into service a decision of this Court in the
case of District Collector, Satara & Anr. v. Mangesh Nivrutti
Kashid6. He pointed out that this Court clearly stated that Vigilance
Cell's assistance is not required to be taken in every case but only when
the Scrutiny Committee is not satisfied with the documents produced by
the applicant. He also pointed out that an applicant who is a member of
a Scheduled Tribe and who has been staying in an urban area may not
be conversant with the traits, characteristics, ceremonies, and deities of
the tribe. Learned senior counsel also relied upon a decision of the Bombay
High Court in Writ Petition No.4198 of 2005 dated 1st August 2018,
which holds that in view of the decision of this Court in the case of
Anand4, the impugned judgment in the case of Shilpa Vishnu Thakur2
stands impliedly overruled. He would, therefore, submit that the impugned
judgment calls for modification and it must be held that the affinity test is
not of paramount importance while deciding a caste claim in accordance
with the 2000 Act and the ST rules.
7. Smt. V. Mohna, learned senior counsel appearing in a connected
case heavily relied upon a decision of this Court in the case of Palghat
Jilla Thandan Samudhaya Samrakshna Samithi & Anr. v. State of
Kerala7. She submitted that the State Government or Scrutiny Committee
cannot hold any enquiry to determine whether or not some particular
community falls within the ST order. She submitted that the State
Government cannot make an effort to indirectly modify the Third
Schedule under the ST Order as the modification can be carried out only
5 2010 (6) Mh.LJ page 401
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in accordance with Article 341 of the Constitution. Her submission is
that in a given case if the documents having probative value show that
the applicant belongs to the Thakur caste or belongs to any other caste
notified in the Third Schedule to the 1976 Act, there is no question of
holding any affinity test.
8. Shri Shyam Divan, the learned senior counsel appearing for the
State of Maharashtra pointed out that it is judicially recognised that the
surname Thakur is shared by both forward and backward class
communities. He placed reliance on the decision in the case of State of
Maharashtra & Ors. v. Ravi Prakash Babulalsing Parmar & Anr.8
He pointed out that even in the impugned judgment, this factual aspect
has been elaborately dealt with. He pointed out that under the provisions
of the 2000 Act, an inquiry is required to be made at three stages. The
first is an inquiry by a Competent Authority for ascertaining the
genuineness of the claim of the applicant on the basis of documents
produced by him. If prima facie, the Competent Authority is satisfied
with the documents, it has to issue a caste certificate which is subject to
verification. The second stage is of domestic and school enquiry to be
conducted by Vigilance Cell which will include an affinity test and the
third stage is of verification and scrutiny by the Scrutiny Committee
which is a quasi-judicial authority.
9. In the written submissions filed by him, he has contended that
even if validity certificates have been issued by the Scrutiny Committee
in case of near relatives of the applicant, the Scrutiny Committee has to
apply an affinity test as an integral part of the process of assessing the
entire evidence again to ensure that illegality is not perpetuated. He
submitted that there are cases where a validity certificate is issued to a
near relative by mistake or fraud or without holding an enquiry as
contemplated by law or without recording any reasons.