Writ Petition No.1907 of 2003

16th December, 2003

Petitioner Counsel: Shri. S. B. TALEKAR
Respondent Counsel: Shri. S. V. CHILLARGE,Shri. K. J. GHUTE PATIL,Shri. M. S. DESHMUKH

Cases Cited:
Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development, AIR 1995 SC 94 [Para 5]
Subhash Ganpatrao Kabade Vs. State of Maharashtra, 1987(3) Bom.C.R. 615 [Para 5]
Gayatrilaxmi Bapurao Nagpure Vs. State of Maharashtra, (1996)3 SCC 685 [Para 6,9,10]
Yatin Nilkanth Bastav Vs. Executive Magistrate, 2003(4) ALL MR 621 [Para 6]
Aruna K. Koli Vs. State of Maharashtra, 2002 Vol. 104(3) Bom.L.R. 396 [Para 6]
Palghat Jilla Thandan Samudhaya Samrakshna Samithi Vs. State of Kerala, (1994)1 SCC 359 [Para 7]
State of Maharashtra Vs. Milind, 2001(1) ALL MR 573 (S.C.)=2001(1) Mh.L.J. 1 [Para 7]
Pandurang Rangnath Chavan Vs. State of Maharashtra, 1998(3) ALL MR 528=1998(2) Mh.L.J. 806 [Para 7]
Rajesh Yadavrao Sankpale Vs. State of Maharashtra, 1999(3) ALL MR 433=2000(1) Mh.L.J. 168 [Para 7,11]

JUDGMENT

F. I. REBELLO, J. :- The petitioner was appointed as a Peon in a school run by the respondent No.4. His tribe claim was referred to the second respondent for verification. The second respondent, by its order dt.28.01.2003 invalidated the tribe claim and hence the present petition.

2. The petitioner, in his petition has averred that he had not applied for a reserved post for Scheduled Tribe. It is not necessary to go into that issue as the tribe claim of the petitioner was referred by the School to the Committee. The petitioner appeared and participated. He was appointed by order dt.22nd September, 1999, and his services came to be confirmed on successful completion of probation vide order dt.27th September, 2001. His tribe claim was referred by the Headmaster to the Committee sometime in August, 2002. The petitioner was asked to appear before the Committee on 24th September, 2002. Petitioner appeared on 24th September, 2002, and submitted several documents and in addition filled in a questionnaire in the prescribed proforma. The petitioner submitted as many as eight documents which included the entry in the service book of his father. The Vigilance Officer conducted an enquiry and submitted the report dated 30th August, 2002 which was made available to the petitioner some time in September, 2002.

It is the case of the petitioner that, the second respondent noted that the tribe of his father was recorded as Koli in the school record. The second respondent then proceeded on the footing that since the record was maintained by the public authority, the same had probative value to determine the status of the petitioner's family. It is respondent's contention that the cast Koli has been notified as a Special Backward Class in the State of Maharashtra and is in no way connected with the Scheduled Tribe Mahadeo Koli. The documents relied upon by the petitioner were rejected on the ground that all those documents were issued subsequent to the entry in the school record of the father of the petitioner. The respondent No.2 Committee further held that the petitioner was unable to produce documentary evidence in support of his claim and failed to prove affinity and ethnic linkage towards Koli Mahadeo Scheduled Tribe.

3. It is the case of the petitioner that the Government of India had appointed a Committee on Backward Classes under the chairmanship of Kaka Kalelkar so as to identify and recommend the communities which fall in the category of Scheduled Castes and Scheduled Tribes and which could be notified as such. The Backward Classes Commission has recommended to include Koli in the list of Scheduled Tribes for the erstwhile Hyderabad State. Before the recommendations of Kaka Kalelkar Commission on Backward Classes could be accepted or implemented, the erstwhile Hyderabad State was dissolved. Five of the districts of erstwhile Hyderabad State, which form part of what is now known as Marathawada region of the State of Maharashtra, were included in the State of Maharashtra. As a consequence of the State of Hyderabad being dissolved, Parliament had no occasion to accept the recommendations of the Commission on backward classes in so far as State of Hyderabad is concerned. The five districts are 1) Aurangabad (now bifurcated into Aurangabad and Jalna, (2) Nanded, (3) Latur (now bifurcated into Latur and Osmanabad), (4) Parbhani (now bifurcated into Parbhani and Hingoli) and (5) Beed. The above five districts as now bifurcated constitute eight districts of Marathwada, in the State of Maharashtra.

It is petitioner's further case that, historically speaking, the origin of Koli Mahadeo is in the Balaghat Ranges. The Balghat Ranges are formed in the Marathawada Region of the erstwhile Hyderabad State. There is no coastal area in the Marathwada region and, consequently, there is no Machimar Koli found in the Marathwada region. The petitioner's further case is that in these areas Koli Mahadeo was not recognised as Scheduled Tribe before 1976 though it was recognised in some Districts of the State of Maharashtra. The members belonging to this community did not bother to mention their sub tribe or sub division of the main community i.e. Koli. It is petitioner's case that Koli community was the main tribe i.e. genus whereas Koli Malhar, Tokre Koli, Chumble Koli, Mahadeo Koli were its sub-divisions or sub-tribes.

Various grounds have been taken to challenge the order of the second respondent. They will be considered to the extent they are required to be considered while disposing of the petition.

On the other hand, on behalf of the respondent no.2, it is contended that the Committee considered the documentary evidence, the Vigilance report and also made an enquiry into the tribal traits and affinity of the petitioner towards Mahadeo Koli community. The Committee found that the petitioner had failed to produce sufficient documentary evidence in support of his claim and also utterly failed to prove the affinity and ethnic linkage towards Koli Mahadeo Scheduled Tribe and in view of that, rejected the claim of the petitioner herein.

4. In order to ascertain the grievances frequently made at the Bar about the manner in which the Committees constituted to verify or validate caste or Tribes Certificates approach the issue specially in this region and that their orders are stereotyped, records were called for. From the records made available what is noticed is that, for preparing the vigilance report, there is a proforma prepared of the questions to be asked of the candidates or relatives. Thumb impressions or as the case may be signatures are taken on the statement recorded by the Vigilance Officer. How the question for verification of the tribal status are framed is not clear. Whether general or tribe specific. It, however, appears to be apparent that the questions seem to be common, for all Scheduled Tribes, whether they be Mahadeo Koli or others. The Committee maintains a proforma based on which information is taken from the relative and/or the candidate. In the instant case, it was taken from the candidate's father Narayan Survase. We have also examined the proforma prepared for deciding the claim of a candidate who appears before it. There is a draft stereotype proforma, for passing an order with one heading 'Comments of the Scrutiny Committee' in which the gaps are filled in. Paragraphs which are not required are then struck off. A gap is left to mention the documents filed. The conclusion is then recorded based on the stereotyped draft available. This proforma order, where insertions are made and paragraphs struck off, is then typed and the typed order is then signed by the members of the Committee. This order is then communicated to the candidate. The tribe claim of a party is disposed of in the manner aforestated. No reasons are given as to why documents are rejected except for a stereotype recording that some documents have to be rejected because the certificate is subject to scrutiny. The order then records that the Executive Magistrate issued the caste certificate to the candidates, relative in a very casual manner and without following Government instructions. No reasons are given for the observations. The next paragraph sets out that it is the responsibility of the petitioner to produce sufficient documentary evidence which the applicant nor his family has produced nor cooperated with the Committee by collecting information and documentary evidence in support of such claim. In what manner the documents produced are to be rejected is not given, except for a bald assertion that they are subsequent to the Presidential Notification. Reliance is then made to some judgments and then comes the conclusion. All this in terms of the common draft order. Issue of tribal characteristics of the candidate are disposed off without going into the material by asserting that the same is not proved.

Such orders which decide the valuable civil rights of a party who has no recourse to any other civil remedy except interference by this Court under Article 226 cannot be allowed to stand. The 2nd Respondent is bound individually in each case to consider the evidence documentary and/or oral and accept or reject it by recording specific reasons.

5. Before we proceed to answer the issue, let us consider the judgment in the case of Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and another (AIR 1995 SC 94). In that case, the Apex Court laid down various directions, which are set out in paragraph No.12 of the judgment. Some extracts of the direction issued may be set out, which are :-

(1) In the case of Scheduled Tribes, a Research Officer, who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities has to be appointed.

(2) A Vigilance Cell has to be constituted, consisting of Senior Superintendent of Police in overall charge and Police Inspector to investigate the social status claims. The Police Inspector has to go to the local place of residence and original place from which candidate hails and usually resides or, in case of migration, to a town or city, the place from which he originally hails from. The Vigilance Officer has to personally verify and collect all the facts as of the social status claimed by the candidate from the parents or the guardian, as the case may be. Apart from that, he has to examine the school records, birth registration, if any. He has to 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 submit a report to the Director, together with all particulars as envisaged in the proforma, in particular of the Scheduled Tribes, relating to their peculiar anthropological and ethnological traits, deities, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies, etc.

(3) The Director concerned, if he finds that the claim of social status is not genuine or doubtful or spurious or falsely or wrongly claimed, has to issue show cause notice to the applicant, supplying a copy of the report of the vigilance officer to the candidate in the manner set out in direction No.6 of the judgment and an opportunity of hearing is also set out therein.

(4) The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. No suit or other proceedings can lie before any other authority.

(5) The High Court has to dispose of the case as expeditiously as possible within a period of three months.

(6) In case, as per procedure, the writ petition/miscellaneous petition/matter is disposed of by Single Judge, then no further appeal would lie to the Division Bench against the order, but subject to the Special Leave under Article 136.

In Madhuri Patil's case, the Apex Court had occasion to consider the judgment of the Division Bench of this court in the case of Subhash Ganpatrao Kabade Vs. State of Maharashtra, (1987(3) Bom.C.R. 615). The Division Bench of this court had therein noted that a person belonging to Mahadeo Koli tribe and residing in Marathawada region were not recognised as backward and falling in the category of Scheduled Tribes till the year 1976. They were recognised as Scheduled Tribes only from 1st of May, 1976 by virtue of Section 4 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 read with paragraph 3 of the Constitution (Scheduled Tribes) Order, 1950 and the Schedule, as amended by the aforesaid Act. It is also mentioned that at the time when the petitioner was admitted to the school, Mahadeo Koli, in Marathwada region, were not recognised as backward, falling in the category of Scheduled Tribes. The Apex Court, in Madhuri Patil's case, noted that Mahadeo Koli was declared to be a Scheduled Tribe by Bombay Province 1933 and the President of India declared in 1950 under Art.342, in consultation with the Government of Bombay (Maharashtra) and as amended from time to time. The Apex Court noted that Kolis have been declared as Other Backward Class in the State of Maharashtra, being fishermen, in that, their avocation is fishing and, they live mainly in the coastal region of the Maharashtra. Mahadeo Kolis are hilly tribes and is not a sub tribe. Even prior to independence, the Government had declared Mahadeo Koli to be a criminal tribe as early as May 29th, 1933, in Serial No.15 in List II thereof. In 1942 resolution in Serial No.15 in Schedule B of the Bombay resolution Mahadeo Koli tribe was notified as a Scheduled Tribe. A slight modification was made in that behalf in the Presidential Notification dated October 29, 1956. In 1976 Amendment Act, there is no substantial change except removing the area restriction. Thus, the Court held, Mahadeo Koli tribe was notified as Scheduled Tribe. It was later included at Sr. No.13 in the Presidential Scheduled Castes/Scheduled Tribes Order, 1950. A slight modification was made in that behalf by the Presidential Notification dated October 29, 1956. In 1976 Amendment Act, there is no substantial change except removing area restriction. Thus the Apex Court held, Mahadeo Koli, a Scheduled Tribe, continued to be a Scheduled Tribe even after independence. The Apex Court held that the assumption of the Division Bench of the this High Court in Subhash Ganpatrao Kabade's case, supra, that Mahadeo Koli was recognised for the first time in 1976 as Scheduled Tribe is not relatable in reality and an erroneous assumption made without any attempt to investigate the truth in that behalf. The Presidential declaration, subject to amendment by the Parliament, being conclusive, no addition to it or declaration of castes/tribes or sub-castes/part of or groups of tribes or tribal communities is permissible.

Learned Counsel submits that the finding that Mahadeo Koli were recognised as S. T. for the entire State of Maharashtra did not take into consideration that Marathwada Region was not part of the Bombay State in 1950 or earlier, as it was a part of the State of Hyderabad and further the Presidential Notification of 1950 did not include the Mahadeo Kolis of Marathawada, but Mahadeo Kolis in some Districts of the erstwhile State of Bombay and subsequently Maharashtra and it is only on the removal of the area restriction that Mahadeo Kolis in the districts of Marathawada Region became entitled to the benefit. There may be some force in the contention advanced by learned Counsel that an important aspect of the matter namely that the five districts (now eight) constituting the Marathawada region of Maharashtra, were part of the Hyderabad State where Mahadeo Kolis were not notified as Scheduled Tribe, was not taken into consideration. Considering the finding of the Apex Court it is not for us to give a further finding on that aspect.

The Apex Court while dealing with tribe character also observed, in respect of the Scheduled Tribes, that despite the cultural advancement, the general traits are passed on from generation to generation and none escapes or forgets or gets overthrown. The tribal customs are peculiar to each tribe or tribal communities and are still maintained and preserved. The cultural advancements, to some extent, modernises and progresses the community but that does not obliterate their customary and cultural past to establish the affinity to the membership of a particular tribe. The Apex Court also noted the anthropological moorings and ethnological kinship gets genetically ingrained in the blood and no one would shake off from the past in particular, when one is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognised by the Constitution for the upliftment in the society. The ingrained tribal traits peculiar to each tribe and anthropological features all the more become relevant when the social status is in acute controversy and needs a decision. The correct projectiles furnished in pro forma and the material would lend credence and give an assurance to properly consider the claims of the social status and the concerned officer or authority would get an opportunity to test the claim for social status of particular caste or tribe or tribal community or group or part of such caste, tribal or tribal communities.

6. In Gayatrilaxmi Bapurao Nagpure Vs. State of Maharashtra and others ((1996)3 SCC 685) the Apex Court noted paragraph No.15 of the judgment in Madhuri Patil's case and, applying the test, observed that the Committee failed to consider all the relevant materials placed before it and denied the rightful claim. The court observed that by a wrongful denial of the caste certificate to a genuine candidate, such a candidate would be deprived of the privileges conferred upon him by the Constitution. Therefore, greater care must be taken before granting or rejecting any claim for caste certificate. What is important to note is that the Apex Court then observed, that the High Court in that case, without appreciating the probative value of the documents placed before it, had dismissed the writ petition filed by accepting the conclusion reached by the second respondent committee. The Apex Court then noted that though the burden lies heavily on the applicant to seek such a certificate, that does not mean that the authorities have no role to play in finding out the correctness or otherwise of the claim for issue of a caste certificate. The Apex Court held that, the concerned authority will also play a role in assisting the Committee to arrive at the correct decision and, in that case, except the documents produced by the appellant before it, nothing has been produced by the concerned authorities to arrive at a different conclusion. In Gayatrilaxmi Bapurao Nagpure (supra) various documents had been relied upon, which are listed in paragraph No.11 of the judgment. The Apex Court observed in paragraph no.12 that approach of the Committee in rejecting documents could not be appreciated in absence of any attempt on the side of the Government to suspect the correctness or genuineness of the documents produced by the appellant before it. (emphasis supplied)

In Mr. Yatin Nilkanth Bastav Vs. Executive Magistrate and others (2003(4) ALL MR 621) another Division Bench of this court has noted, while setting aside the order of the Scrutiny Committee, that the Scrutiny Committee, in that case had failed to appreciate that merely because the caste was generally described as Koli, that, by itself, does not exclude the possibility of the tribe of petitioner's father and uncle being Mahadeo Koli. The general description of the genus, caste does not exclude any particular, specie such as Mahadev Koli. On the contrary, it is an inclusive description. The Court held in that case that there is nothing on record to exclude the petitioner's father and uncle as belonging to the caste Mahadeo Koli.

A Learned Judge of this court in case of Aruna K. Koli Vs. State of Maharashtra and others (2002 Vol. 104(3) Bom.L.R. 396) has also dealt with the issue. It is not necessary to advert to what is set out in the judgment in detail. The learned Judge, however, has dealt at length with the historical position as reflected in texts and material placed before him.

7. We may now consider the issue to what extent a High Court can let in evidence about the scope of an entry or inclusion or non-inclusion of a sub tribe or group in a notified Scheduled Tribe in the Scheduled Castes/Scheduled Tribes Order by adverting to the law as declared in various judgments. In Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another Vs. State of Kerala and another ((1994)1 SCC 359) the Apex Court made it clear that Scheduled Castes Order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. No action to modify the plain effect of the Scheduled Castes Order, except as contemplated under Article 341, is valid and that it is not for the State Government or the Supreme Court to enquire into the correctness of what is stated in the report that has been made thereon or to utilise the report to, in effect, modify the Scheduled Castes Order. It is open to the State Government, if it deems so proper, to forward the report to the appropriate authority to consider whether the Scheduled Castes Order needs amendment by appropriate legislation. Until the Scheduled Castes Order is amended, it must be obeyed as it reads.

In State of Maharashtra Vs. Milind and others (2001(1) Mh.L.J. 1 : 2001(1) ALL MR 573 (S.C.)), the issue before the Apex Court was whether it was permissible to hold enquiry or let in evidence to decide or declare whether any tribe or tribal community forms part of or group within any tribe or tribal community can be held to be included under the general name, even though not specifically mentioned in the Entry. The Apex Court observed that the Scheduled Tribes Order must be read as it is and it is not permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if not so specifically mentioned. The Apex Court thereafter summed up the proposition of law which it set out and is reflected in paragraph No.36. It is not necessary to reiterate all the propositions. However, the Court held that it is not at all permissible to hold enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group of any tribe or tribal community is included under the general name, even though it is not so specifically mentioned in the Entry concerned in the Constitution (Scheduled Tribes) Order, 1950. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order, if they are not specifically mentioned in it. A notification under clause (1) of Art.342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament and it is not open to the State Government or Courts or Tribunals or any other authority to modify, amend or alter the list of the Scheduled Tribes specified in the notification issued under clause (1) of Article 342. It is, therefore, clear that Courts, including a High Court cannot add to or hold a sub-division or spouse is included with the tribe or caste as notified. That is exclusively within the jurisdiction of the Authority under Article 341 or 342 as the case may be.

In Pandurang Rangnath Chavan Vs. State of Maharashtra and others (1998(2) Mh.L.J. 806 : 1998(3) ALL MR 528) the issue before the Division Bench of the Court was whether the State Government or Court has power to determine whether a particular community falls within it or outside it. In that case, the tribe Thakur, Thakar etc. has been declared as belonging to Scheduled Tribe as contemplated within the meaning of Article 342 of the Constitution. The Government notified Thakar as Scheduled Tribe in Maharashtra by Amendment Act No.108/1976. The Government resolution dt.8-7-1982 declaring Thakar as Other Backward Class, the learned Division Bench held that, that could not be done and, consequently quashed the said notification.

In Rajesh s/o Yadavrao Sankpale Vs. State of Maharashtra and others (2000(1) Mh.L.J. 168 : 1999(3) ALL MR 433) the Division Bench of this court considered the issue of Kolis in Marathwada region. The Court noted that Kolis are notified as Other Backward Class in the State of Maharashtra. The judgment notes that Kolis are fisherman and they live mainly in the coastal region of Maharashtra. The judgment further notes that Mahadeo Koli is not sub-caste of Kolis and that Mahadeo Koli were recognised as Scheduled Tribes even prior to 1976. As a consequence of the Presidential Order, 1976, the Koli in Marathwada region did not become Mahadeo Kolis.

8. Presidential notification, notifying the Constitution (Scheduled Tribes) Order, 1950, in so far as the State of Bombay is concerned, included amongst the Scheduled Tribes Koli Dhor and Koli Mahadev. At the relevant time, the five districts, now in Marathwada, were not a part of the Bombay State but were part of the State of Hyderabad. There was no inclusion of the tribe Koli Mahadeo among the Scheduled Tribes notified for the State of Hyderabad. Thereafter even under the amendment to the Constitution (Scheduled) Tribes Order, 1950, the position remained as under :

Mahadeo Koli was declared Scheduled Tribe in the Bombay Province as early as 1933. For the State of Bombay, under item 12 were included Koli Dhor, Tokre Koli, Kolcha or Kolgha. Then under item 3(a) in certain talukas in Ahmednagar, Kolaba, Nashik, Poona and Thana, Koli Mahadev or Dongar were also notified as Scheduled Tribes.

Then came the scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. Under this, in so far as the State of Maharashtra is concerned, under item No.28 were included Koli, Dhor, Tokre Koli, Kolcha or Kolgha and under item No.29, Koli Mahadeo, Dongar Koli, and at item no.30 were Koli Malhar, for the entire State.

In the erstwhile State of Hyderabad there was an enactment, known as Tribal Areas Regulation, 1359 Fasli under which the 'Tribe' was defined to mean Bhils, Chenchus, Gonds, Hill Reddies, Kolams Koyas, Naikpods, Pardans, Totis. Thus, in erstwhile State, there was no reference to either Mahadeo Kolis or Kolis as Scheduled Tribe except as an agricultural community wherein it was referred to as Kolis. The Backward Classes Commission had however suggested inclusion of Koli as Scheduled Tribe in the State of Hyderabad. This was never given effect to by any specific Presidential order or Legislation.

The five districts, now eight, of Marathawada were earlier forming part of erstwhile State of Hyderabad. When then Backward Classes Commission submitted its report, one of its recommendations, for the State of Hyderabad, was to include Koli, as a Scheduled Tribe. In so far as State of Hyderabad is concerned, we have some material from the book "The Castes and Tribes of H.E.H. The Nizam's Dominions" by Syed Siraj Ul Hassan, published in the year 1920 (Bombay, The Tata Press).

In respect of Kolis, internal structure is described as under :

Mahadev Kolis derive their name from the god Mahadeo and they have 24 exogamous septs (sects), each of which is further divided into a number of surnames or sub-sections. The Kolis observe the simple rule of exogamy that a man may not marry outside the sub-tribe or inside the sept (sect) to which he belongs. In so far as religion is concerned, it is set out that their patron deity is Mahadeo, their household worship, in which priests take no part, is addressed to Bhairoba (Sonari, Ahmednagar), Devi of Tuljapur (Nizam's territory) and Khandoba of Jejuri (Pune). The dead are buried in a lying posture, with the face upwards and the head pointing to the north.

In the Encyclopedic Profile of Indian Tribes, by Sachchidananda and R. R. Prasad, in an article written by Navinchandra Jain and Robin D. Tribhuwan it is mentioned that the Mahadeo Kolis are one of the major tribes of western Maharashtra. It is predominantly found in five districts namely Nashik, Pune, Ahmednagar, Thane and Raigad.

The major deities of Mahadeo Kolis are goddess Bhavani, and gods Kaloba and Bhairoba, respectively. The Mahadeo Kolis bury their dead and head points towards the south. Irrespective of the changes which are taking place in their life style, the Mahadeo Kolis still hold superstitious beliefs about life, death, etc. The traditional village panchayat of the Mahadeo Kolis is known as "Gaon Baithak".

In the Census of India, 1941, Vol.XXI HEH Nizam's Dominion, published in 1945, there is Appendix I which is an essay by Christoph Von Furer Haimendrof Ph.D. on "Tribal Populations of Hyderabad Yesterday and Today", which states that Kolis in Hyderabad State are known and recognised as Scheduled Tribe and the "Kolis" in erstwhile Hyderabad State on reorganisation of State, will continue as Scheduled Tribe. This factually seems not to be correct.

9. From the above judgments and discussion what emerges is as under :-

(1) It is not open to the High Court to go behind the Entry and see whether the tribe/caste, which is included in the Presidential Notification consists of or includes other sub-tribes or sub-castes. That is an exercise, which cannot be done by a Court. That exercise can only be done in the manner contemplated by Articles 341 and 342 of the Constitution of India. The Court, therefore, while considering a caste/tribe claim, has to look at only the entry in the Notification and, whether the person, whose tribe class/caste comes up for validation, falls within the entry.

(2) The Committee has to be constituted in terms of the judgment of the Apex Court in Madhuri Patil's case. There has to be a person with expert knowledge who has to be included as Member of the Committees, considering what is set out specifically in the case of tribe claim.

(3) The report of the Vigilance Committee is mandatory. As that information will constitute the basic information it must include information of the area/village from where the candidate hails, specially in case of a tribal claim, as that will be of much importance in assessing the tribe status claimed by a candidate as tribals normally would be found in a specified village or area.

(4) The anthropological factors, including traits, customs and other material, which would identify a candidate, has to be considered. This has to be done based upon a specialised study by a person conversant with the tribal traits and other anthropological factors. In the absence of any documentary evidence, this becomes an important piece of evidence to examine a claim of the party, considering what the Apex Court has said in Madhuri Patil's case that, even considering the modernisation of the community, a person belonging to a particular tribe will not forget his origins and basic tribal traits and characteristics. The past is never obliterated. There, always, would be retention of the customary and cultural past.

(5) From the judgment in Gayatrilaxmi Bapurao Nagpure, supra, what emerges is that, it is not open to the Committee to reject the documentary evidence produced, mainly on the ground that it is of recent origin without considering the probative value. A burden is cast on the authorities in finding out the correctness or otherwise of these documents.

10. Considering these tests and the facts of the present case, the approach of the Committee in rejecting the documents merely on the ground that they are subsequent to the Presidential Notification and, therefore, have no probative, value has to be rejected. No judgment lays down as a principle that the documents after 1950 need not be rejected. On the contrary the judgment in Gayatrilaxmi Bapurao Nagpure (supra), has taken the view that all documents produced must be considered. Those documents will have to be considered on the touchstone of appreciation of evidence, considering that no suit can be filed by a party against an order passed by the Scrutiny Committee. The documents can be rejected, if there is material in the form of documents or other evidence of non-tribal status or that they are not genuine or got up or such like consideration which would result in negating the probative value of the documents produced by the candidate. The test laid down in Gayatrilaxmi Bapurao Nagpure, supra, is that the Committee cannot reject documents in absence, on the part of the Government, Vigilance Officer Research Officer, of establishing that the document is suspect or its correctness or genuineness can be disbelieved on the material placed before the Committee.

11. The conclusions that must follow from the discussion are as under :-

(a) The Committee, considering the claim of a candidate, is the only fact finding Committee. Therefore, great care must be taken in absence of any appeal, to consider and appreciate all the evidence, documentary or by way of affidavit or oral which has been produced.

(b) As a fact finding Committee and, a quasi judicial authority, deciding the status of the party and from which order no appeal lies, it must record reasons for rejecting the evidence produced, documentary or oral. The need for recording reasons is because a High Court examining the order in the exercise of its extra ordinary jurisdiction under Article 226 would be in a position to know whether correct tests have been applied and whether the evidence placed before the Committee has been considered.

(c) Merely because an entry as, for instance, Koli, is recorded in the School records, by itself, cannot result in rejecting the claim of a candidate. This is more so in the five districts, now eight districts, of Marathwada, which were earlier forming part of the erstwhile State of Hyderabad and who admittedly are not in the profession of fishing as traditional occupation nor is Marathwada a coastal belt. The Committee, while considering the claims of Scheduled Tribe candidates, coming from this area, will have to consider the other material placed before it and not merely proceed on the footing that, because Koli is shown in the school certificates or, some other document, all other evidence must be rejected. The Committee must consider the documentary evidence, coupled with the Vigilance Report and other evidence of tribal traits and characteristics, to arrive at a conclusion that the petitioner belongs to the tribe, he/she claims to being. No doubt, the burden will be more on the candidate where such entry is recorded unlike in a case, no such documentary evidence is recorded. As has been held in the case of Rajesh s/o. Yadavrao Sankaple (supra), Kolis in Marathawada did not become Mahadeo Kolis by the Presidential Order of 1976. However, it would still be open to persons claiming to be belonging to Mahadeo Kolis to establish that they are not fisherman and establish by evidence their tribe characteristics as Mahadeo Kolis.

(d) In so far as documentary evidence is concerned, mere absence of the records of the parents of the candidate cannot be held against a claimant. The very fact that the tribe/caste is notified, as S.C./S.T. is based on the historical fact that the tribe/cast is backward. In these circumstances, the mere absence of documentary evidence cannot be held against a claimant. In those cases the report of the Vigilance Officer and of the Research Officer, about the tribal traits and characteristics and anthropological studies, must decide the issue based on the evidence produced.

(e) We have earlier observed that the orders are stereotyped. This needs correction at the hands of the Committee. In respect of the evidence pertaining to traits, characteristics, anthropological studies, there must be a specific proforma in respect of each tribe and, may be, even caste. A claimant should be asked questions in respect of his tribe claim and not pertaining generally to all tribes. It is possible that some traits will be common but, at the same time, there will be other traits which may be distinct to distinguish one tribe from the another. The praforma for verification of tribe claim, must include the specific traits of each tribe.

(f) In the absence of documentary evidence, the duty of the Committee will be to permit the candidate to lead evidence of tribal traits and characteristics, by answering the questionnaire prepared in respect of his tribe and also allow any evidence on affidavit to be led on which the candidate can be questioned. That material including in cases where there are documents should be made available to the Vigilance Officer who will verify the same by following the procedure laid down in judgment of the Apex Court referred to earlier to find out the authenticity or genuiness of the claim.

(g) The report of the Vigilance Officer along with any documents the Officer may collect must be given to the candidate, to enable him to give his say if the report is adverse, or if the Committee is of the prima facie opinion, that the report has to be rejected. The reply if any should be considered whilst passing order in the claim of the candidate.

12. Having considered the issue, to our mind, on the facts of the present case, we find that the tests which had to be applied, have not been applied by the Committee. The impugned order will have to be set aside.

13. For the aforesaid reasons, the impugned order is set aside and the matter is remanded to the second respondent for reconsideration in terms of the directions issued.

Pending the decision by the Committee and, for a period of four weeks from the communication of the order, if it be adverse to the petitioner, respondent nos.1, 4 and 5 not to take steps to terminate or revert the petitioner, or pass any other adverse order, only based on the rejection of the tribe claim. The petitioner to appear before the Committee on 10th January, 2004, at 11 a.m..

Order accordingly.