Writ Petition No.2153 of 2004

13th February, 2006

Petitioner Counsel: Shri. A. D. PAWAR
Respondent Counsel: Shri. M. S. DESHMUKH,Shri. D. S. BAGUL

Cases Cited:
Madhuri Patil Vs. Additional Commissioner, Tribal Development, AIR 1995 SC 94 [Para 6,13]
Prabhu Narayan Survase Vs. State of Maharashtra, 2004(4) ALL MR 815 [Para 8]
Madhav Gaddapod Vs. State of Maharashtra, W. P. No.4560/2004, Dt.5-8-2004 [Para 8]
Gayatrilaxmi Baburao Nagpure Vs. State of Maharashtra, (1996)3 SCC 685 [Para 13]

JUDGMENT

S. P. KUKDAY, J.:- Rule. Rule made returnable forthwith. With the consent of the respective Advocates, Petition is taken up for hearing. Respective Counsel waive service.

2. In this petition, the petitioner challenges order dated 6-6-2002 passed by the Scheduled Tribe Certificate Scrutiny Committee, Aurangabad (Respondent No.1) (hereinafter referred to as "the Committee") invalidating his tribe claim.

3. The petitioner claims to belong to "Koli Mahadeo" Scheduled Tribe. He is a native of village Ashiv, Tq. Ausa, Dist. Latur. Not only parents but most of his near relatives are illiterate. The petitioner has taken education up to Bachelor of Arts (B.A.). The petitioner applied for and was selected as Driver in Maharashtra Road Transport Corporation, on a seat reserved for Scheduled Tribe.

4. The caste/(tribe) claim of the petitioner was referred by the employer to the Committee for the purpose of verification. After conducting school and home inquiry and giving an opportunity to the petitioner of producing oral as well as documentary evidence in support of his tribe claim, the Committee found that all the documents produced by him were of recent origin, in as much as the documents were of post Presidential Order, 1950 era. The Committee further found that the petitioner has failed to prove cultural affinity and ethnic linkage with "Koli Mahadeo" Scheduled Tribe as he does not have even a basic knowledge of the traits, characteristics, customs, usages etc. of "Koli Mahadeo", Scheduled Tribe. On these main grounds, the Committee invalidated his tribe claim vide an order dated 6-6-2002. This order has been impugned by the petitioner in the instant petition.

5. It is the case of the petitioner that except his brother and uncle Mahadeo, his parents and other blood relatives are illiterate. His brother has taken education up to IV standard and has then started working as manual labourer, at Mumbai. He himself has taken education up to B.A. From Primary till the Graduation level his caste is recorded as "Koli Mahadeo" in the school as well as College record. In addition to his school and college record, he has submitted caste certificate of his paternal uncle, Mahadeo Zunjkar, issued by the Executive Magistrate, Ausa on 10-06-1988, along with the extract of service record of his uncle. The petitioner further claims that home enquiry was conducted by the Vigilance Cell, in which information submitted by him was verified. There is nothing adverse in the report of the Vigilance Cell. Inspite of this the Committee invalidated his tribe claim.

6. Before entering into the merits, it may be pertinent to bear in mind that in view of the prevailing acute problem of unemployment, there is cut-throat competition for the service under the Government. For upliftment of the backward class and for their advancement certain privileges are given to them in the form of reservations of posts in service with Government, semi-Government and Local Authorities. However, on several occasions, some unscrupulous elements who are not entitled to these concessions, secure jobs by claiming pseudo-status. Considering the need for streamlining the procedure and for ensuring that SCs and STs get their due share, the Apex Court in the celebrated judgment in the case of Madhuri Patil Vs. Additional Commissioner, Tribal Development and others reported in AIR 1995 SC 94 has laid down guidelines to ensure that the tribe/caste claim is verified by following proper procedure. Directions were also given for formation of Committee for verification of tribe claim and for creation of Vigilance Cell to conduct home enquiry. The guidelines lay down that the tribe claim is to be verified with he help of entries in the public record. The claimant is to be subjected to affinity test to ascertain whether he has knowledge regarding traits and characteristics of the concerned tribe. In this behalf, the Apex Court has observed in para no.10 of the report that, "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 projectives 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 officer or authority concerned would get an opportunity to test the claim for social status of a particular caste or tribe or tribal community or part of such group or part of such caste, tribe or tribal community". It is also observed that "the tribal customs are peculiar to each tribe or tribal communities and are still maintained and preserved. The cultural advancements, to some extent, modernizes and progresses the community but that does not obliterate their customary and cultural past to establish the affinity to the membership of the particular tribe. The Apex Court further noted that anthropological moorings and ethnological kinship gets genetically ingrained in the blood and none would shake off from the past in particular when one in conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognized by the Constitution for upliftment in the society".

7. The guidelines provide for procedure to be followed for verification of the tribe claim. Generally, no difficulty arises where the members of the family of the claimant are literate. In these cases, the claimant can substantiate his claim by producing documents of Pre-Presidential Order era which have more probative value. However, problem arises where none of the members of the family are literate. In such cases, naturally documentary evidence relates to the post Presidential Order period. It appears that the Committee/s have developed a tendency to distrust and discard documents relating to the period after the year 1950, dubbing them as recent documents.

8. This approach of the Committee in marginal cases where none of the persons from claimant's family are literate, is too technical. Such pedantic approach defeats the very purpose of giving concessions to economically and socially backward classes of the society. The purpose of making reservations favour of the Backward Classes is to provide them avenues for betterment of their status so that they can join mainstream of the society. The fact that the claimant is the first person to take education from his family, that too up to graduation level, cannot be held against him. On the contrary this fact does, in a way, substantiate his claim that he really belongs to the Backward community. In such cases, the Committee should not reject the documentary evidence in the form of school record etc. produced by the claimant, merely on the ground that they are recent documents and do not have probative value. On the contrary, the Committee must take into consideration the probative value of the evidence adduced from the public record and consider it along with the report of home enquiry. In such cases the "affinity test" assumes great importance and the caste claim should be decided on the basis of this test. Similar, view is taken by this Court in the matter of Prabhu Narayan Survase Vs. State of Maharashtra and Others reported in 2004(4) ALL MR 815 and in Writ Petition No.4560/2004 decided on 5th August, 2004 by the Division Bench of this Court in the matter of Madhav Gaddapod Vs. State of Maharashtra and others to which one of us (A. P. Deshpande, J.) is a party. In para No.8 of the said judgment, it is observed that,

"8. The approach of the Committee appears to be too technical, inasmuch as, though entire documentary evidence supports the case of the petitioner, the same is rejected on the ground that the said documents cannot be construed as conclusive proof for the reason that they are not old documents viz. documents prior to the year 1950. The Committee ought to have borne in mind that the issue need to be adjudicated on the basis of preponderance of probabilities. Instead of doing so, it has chosen to reject all documentary evidence solely for the reason that the said documents are not prior to 1950. Rejection of all the documents solely on this ground constitute refusing to consider the material and relevant evidence on record. What is found against the petitioner is that the applicant and his father failed to furnish documentary evidence prior to 1950 to establish the claim of the applicant."

9. Turning to the merits of the present case, it is seen that the petitioner has produced following documents in support of his tribe claim :

1) Xerox copy of Birth certificate issued by the CEO Municipality.

2) Xerox copy of an extract of school admission register bearing Register No.2510 for the year 90-91 wherein the caste is recorded as Koli Mahadeo.

3) Xerox copy of school leaving certificate issued by Headmaster Shirsala Tq. Majalgaon Dist. Beed.

4) Caste certificate issued by Executive Magistrate, Gangakhed Dist. Parbhani.

5) Xerox copy of extract of school admission register issued by Head Master Shri. Saraswati Vidyalaya (Primary) Parali Vaijnath.

6) Copy of school admission extract issued by Headmaster Z.P. High School, Parali Vaijnath.

7) Xerox copy of caste certificate pertaining to candidate's cousin Shri. Mahadeo Shankar Zunjkar.

8) Xerox copy of first page of Service Book pertaining to candidate's cousin uncle Shri. Zunjkar Mahdeo Shankarrao wherein the caste is recorded as "Koli Mahadeo".

10. From these documents, it can be seen that right from the Primary stage, caste of the petitioner is shown as "Koli Mahadeo". In addition, the petitioner has furnished caste certificate dated 10-6-1988 issued in favour of his paternal uncle Mahadeo by the Executive Magistrate, Ausa, which is his native place, and the entry from the service record of his uncle showing that he belongs to "Koli Mahadeo".

11. The Vigilance Officer has investigated these documents and has observed in Coln. No.16 of his report, that the petitioner is shown to belong to "Koli Mahadeo" right from the Primary stage and that no manipulation whatsoever is found in the entries in the school record. The Vigilance Officer has also mentioned in his report that during the home enquiry, it was found that the father of the petitioner is a native of Ashiv Tq. Ausa, and is an illiterate person. Similarly, three uncles of the petitioner and his sisters, too are illiterate. His brother has taken education up to 4th standard in a Private school. The report also shows that relatives of the petitioner did not own agricultural lands. They were working as manual labourers. From the report it can be seen that documents prior to the year 1950 were not available to the petitioner. In this background, his tribe claim should have been decided on the basis of affinity test.

12. Observations of the Committee in Para No.7 of the impugned order are that, " on going through the statements recorded by the Vigilance Officer, the Committee observed that the applicant does not have even the basic knowledge of traits, characteristics and customs, culture etc. of "Koli Mahadeo" Scheduled Tribe Community. It can thus be seen that approach to the affinity test is perfunctory. In this view of the matter original record was called. We have scrutinised the answers given by the petitioner in the questionnaire. The petitioner has correctly answered most of the questions in respect of peculiar traits and characteristics of his tribe. According to the learned counsel for respondent No.1 the petitioner could not correctly answer some of the questions including questions relating to the place of residence of the members of the tribe. Therefore, no exception can be taken to the observations of the Committee that he does not have knowledge about the traits and characteristics of the Tribe. From the questionnaire, it can be seen that the petitioner has knowledge about the petitioner's traits characteristics and customs. Thus, the contention of learned counsel for Respondent No.1 cannot be sustained.

13. In the present case, the Committee has not considered probative value of the documents produced by the petitioner merely on the ground that they belong to Post-Presidential Notification era. The report of home enquiry is also not properly appreciated by the Committee. Considering the fact that right from the Primary stage till the graduation the petitioner is shown to belong to Mahadeo Koli Tribe and the fact that the petitioner has given correct information in respect of some of the important traits and characteristics, we cannot sustain invalidation of the tribe claim of the petitioner by the Committee, particularly when no contra material is brought on record during the home enquiry conducted by the Vigilance Cell. In these circumstances, interference with finding of the Committee is justified. In this behalf reference can be made to the ruling of the Supreme Court reported in (1996)3 SCC 685 in the matter of Gayatrilaxmi Baburao Nagpure Vs. State of Maharashtra & others. While dealing with similar circumstances, after referring to the principles laid down in Ku. Madhuri Patil Vs. Additional Commissioner and others (AIR 1995 SC 94). Their Lordships have observed in para No.17 of the report that,

"17. Applying the above test to the facts of the present case, we are satisfied that the Committee failed to consider all the relevant materials placed before it and did not apply its mind to an important document "Sl. No.9" which led the Committee to ultimately record a finding against the appellant. By a wrongful denial of the caste certificate, the genuine candidate, he/she will be deprived of the privileges conferred upon him/her by the Constitution. Therefore, greater care must be taken before granting or rejecting any claim for caste certificate."

14. For the reasons afore-mentioned, we quash and set aside impugned order dated 6-6-2002 invalidating tribe claim of the petitioner passed by the Scrutiny Committee and declare that the petitioner belongs to "Koli Mahadeo" Scheduled Tribe. Validity certificate be issued to him within a period of three months from today.

15. In the result, the Petition is allowed. Rule is made absolute in the above terms. However, in the circumstances of the case, there shall be no order as to costs.

Petition allowed.