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

[2023] 3 S.C.R.

AMAH. ADIWASI THAKUR JAMAT SWARAKSHAN SAMITI

THE STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 2502 of 2022)

MARCH 24, 2023

[SANJAY KISHAN KAUL, ABHAY S. OKA ANDMANOJ MISRA, JJ.]

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other BackwardCClasses and Special Backward Category (Regulation of Issuanceand Verification of) Caste Certificate Act, 2000 – ss. 2, 3, 4, 5, 6, 9– Maharashtra Scheduled Tribes (Regulation of issuance andverification of) Certificate Rules, 2003 – rr. 10, 12 – MaharashtraScheduled Castes, De-notified Tribes, (Vimukta Jatis), NomadicDTribes, Other Backward Classes and Special Backward Category(Regulation of issuance and verification of) Caste Certificate Rules,2012 – Whether paramount importance should be given to theaffinity test while adjudicating upon caste claim on the basis of acaste certificate issued by Competent Authority – In other words,the question is whether the affinity test is litmus test for decidingEa caste claim – Held: Only when the Scrutiny Committee after holdingan enquiry is not satisfied with the material produced by theapplicant, the case can be referred to Vigilance Cell – While referringthe case to Vigilance Cell, the Scrutiny Committee must record briefreasons for coming to the conclusion that it is not satisfied with theFmaterial produced by the applicant – Only after case is referredto the Vigilance Cell for making enquiry, an occasion for the conductof affinity test will arise – When an affinity test is conducted by theVigilance Cell, the result of the test along with all other material onrecord having probative value will have to be taken intoconsideration by the Scrutiny Committee for deciding the casteGvalidity claim – In short, affinity test is not litmus test to decide acaste claim and is not an essential part in the process of thedetermination of correctness of caste or tribe claim in every case.

Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward

Classes and Special Backward Category (Regulation of Issuanceand Verification of) Caste Certificate Act, 2000 – MaharashtraScheduled Tribes (Regulation of Issuance and verification of)Certificate Rules, 2003 – Maharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other BackwardClasses and Special Backward Category (Regulation of Issuanceand Verification of) Caste Certificate Rules, 2012 – Whether CasteScrutiny Committee performs quasi-judicial function – Held :Scrutiny Committee under the 2000 Act has been entrusted withvarious powers of the Civil Court under the Code of Civil Procedure,1908 – The powers include power to enforce the attendance ofany witness, to receive evidence on affidavits, to issue commissionsfor the examination of witnesses or documents etc – The scheme ofthe 2000 Act and both SC and ST Rules provides for the ScrutinyCommittee holding an enquiry on the caste claim of the applicant,if necessary, after examining the applicant on oath, recordingevidence of witnesses and calling for documents and records etc. –Scrutiny Committee is expected to record reasons for granting andrejecting the prayer for issue of caste validity certificates – Thus,the Scrutiny Committee has all the trappings of quasi-judicialauthority.Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other BackwardClasses and Special Backward Category (Regulation of Issuanceand Verification of) Caste Certificate Act, 2000 – MaharashtraScheduled Tribes (Regulation of Issuance and verification of)Certificate Rules, 2003 – Maharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other BackwardClasses and Special Backward Category (Regulation of Issuanceand Verification of) Caste Certificate Rules, 2012 –There was aconflict of views expressed in Vijakumar v. State of Maharashtra &Ors. and Anand v. Committee for Scrutiny and Verification of TribeClaims & Ors. regarding recourse to affinity test – Held: In view ofthe fact that the 2000 Act and Rules were not considered, the decisionin the case of Vijakumar is not binding precedent for theproposition that in every case, the Scrutiny Committee is required totake recourse to the affinity test by referring the case to the VigilanceCell – This Court record similar reasons as held in the case of Anandthat affinity test will not always be mandatory and/or conclusive.

AAnswering the reference, the Court

HELD: 1. The 2000 Act has introduced two-tier systemfor the verification of caste claims. In view of the express languageused by sub-section (2) of Section 4, the caste certificate issuedby the Competent Authority does not conclusively establish theBcaste claim of the applicant. The person to whom the castecertificate is granted by the Competent Authority cannot claimthat his caste status has been established. The caste certificateissued by Competent Authority becomes conclusive evidence ofthe caste stated therein only after detailed enquiry ascontemplated by the 2000 Act and rules framed thereunder isCmade by the Scrutiny Committee and the certificate is validated.Therefore, when an application made under Section 3 for the grantof caste certificate is considered by the Competent Authority,very detailed scrutiny of material produced by the applicant isnot contemplated. What is contemplated is prima facie satisfactionDof the genuineness of the caste claim and on the basis of suchsatisfaction that caste certificate as contemplated by sub-section(1) of Section 4 can be issued. Therefore, sub-section (1) of Section4 specifically requires the Competent Authority to record reasonsfor rejecting the application but there is no such requirementincorporated of giving reasons while granting caste certificate.EHowever, the Caste Scrutiny Committee is expected to recordreasons both for validating and not validating the caste certificate.Sub-rule (6) of Rule 4 of the ST Rules provides that theCompetent Authority shall verify the documents produced by theapplicant with the original documents and if satisfied with theFcorrectness of the information, documents and evidence furnishedby the applicant, it shall issue Scheduled Tribe certificate within15 days from the date of receipt of the application. The time limitfixed under the said Rule is also pointer which suggests thatthe enquiry to be made by the Competent Authority is summary

enquiry and detailed enquiry is not contemplated. The mandateGof issuing caste certificates within 15 days cannot be accomplishedif the Competent Authority is to hold detailed enquiry on parwith the one which is required to be held by the ScrutinyCommittee. The law contemplates very detailed scrutiny of thecaste claim by the Scrutiny Committee. If both the CompetentHAuthority and the Caste Scrutiny Committee were to make the

THE STATE OF MAHARASHTRA

same degree of scrutiny and detailed enquiry into caste claims,the very object of the two-tier scrutiny will be frustrated. Section8 provides that the burden of proving caste claim before theCompetent Authority and the Scrutiny Committee is on theapplicant. For discharging the said burden before the CompetentAuthority, it is enough if the applicant produces prima faciematerial to show that his caste claim is genuine. The burden putby Section 8 on the applicant to prove his caste status before theScrutiny Committee is much higher than the burden which he isrequired to discharge before the Competent Authority. [Paras14, 15][1118-F-H; 1119-A-G]

2. Sub-rule (2) of Rule 12 of the ST Rules clearly providesthat only if the Scrutiny Committee is not satisfied with thedocumentary evidence produced by the applicant, it shall forwardthe application to the Vigilance Cell for conducting the school,home and other enquiry. Therefore, in every case, as matter ofroutine, the Scrutiny Committee cannot mechanically forward theapplication to Vigilance Cell for conducting an enquiry. Whensub-rule (2) of Rule 12 contemplates that only if the ScrutinyCommittee is not satisfied with the documents produced by theapplicant that the case should be referred to Vigilance Cell, itfollows that the Scrutiny Committee is required to pass an orderrecording brief reasons why it is not satisfied with the documentsproduced by the applicant. Before referring the case to theVigilance Cell, application of mind to the material produced bythe applicant is required and therefore, the application of mindmust be reflected in the order sheets of the Scrutiny Committee.[Para 19][1123-B-D]

3. The Scrutiny Committee may be satisfied that the castevalidity certificate relied upon by the applicant has been issuedafter making lawful enquiry. But if the Scrutiny Committee is ofthe view that the applicant has not clearly established that theperson to whom caste validity certificate produced on record hasbeen granted is his blood relative, in terms of sub-rule (2) ofRule 12 of the ST Rules, the Caste Scrutiny Committee will haveto refer the case for conducting an enquiry through Vigilance Cell.In such case, the Vigilance Cell can be directed by the ScrutinyCommittee to conduct an enquiry limited to the relationship

Aclaimed by the applicant with the person in whose favour the castevalidity certificate has been issued. If, on the basis of the reportof the Vigilance Cell, the Scrutiny Committee is satisfied that theperson in whose favour caste validity certificate has been issuedis blood relative of the applicant and lawful enquiry has beenconducted before issuing the validity certificate, the ScrutinyBCommittee will have to issue validity certificate even if theapplicant does not satisfy the affinity test. [Para 23][1125-C-G]

AFFINITY TEST

4. The Vigilance Cell, while conducting an affinity test,Cverifies the knowledge of the applicant about deities of thecommunity, customs, rituals, mode of marriage, death ceremoniesetc. in respect of that particular Scheduled Tribe. By its verynature, such an affinity test can never be conclusive. If theapplicant has stayed in bigger urban areas along with his familyfor decades or if his family has stayed in such urban areas forDdecades, the applicant may not have knowledge of the aforesaidfacts. It is true that the Vigilance Cell can also question theparents of the applicant. But in given case, even the parentsmay be unaware for the reason that for several years they havebeen staying in bigger urban areas. On the other hand, personEmay not belong to the particular tribe, but he may have goodknowledge about the aforesaid aspects. Therefore, the learnedsenior counsel, is right when he submitted that the affinity testcannot be applied as litmus test. This Court may note here thatquestion of conduct of the affinity test arises only in those caseswhere the Scrutiny Committee is not satisfied with the materialFproduced by the applicant. [Para 25][1126-E-G]WHETHER CASTE SCRUTINY COMMITTEEPERFORMS QUASI-JUDICIAL FUNCTION

5. On conjoint reading of the 2000 Act as well as ST andGSC Rules framed thereunder, it is impossible to conclude thatthe Scrutiny Committee discharges only administrative functions.The Scrutiny Committee under the 2000 Act has been entrustedwith various powers of the Civil Court under the Code of CivilProcedure, 1908. The powers include power to enforce theattendance of any witness, to receive evidence on affidavits, toH

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

issue commissions for the examination of witnesses or documentsetc. The scheme of the 2000 Act and both SC and ST Rulesprovides for the Scrutiny Committee holding an enquiry on thecaste claim of the applicant, if necessary, after examining theapplicant on oath, recording evidence of witnesses and callingfor documents and records etc. The Scrutiny Committee isexpected to record reasons for granting and rejecting the prayerfor issue of caste validity certificates. Thus, the ScrutinyCommittee has all the trappings of quasi-judicial authority. [Para28][1128-C-F]

DECISIONS IN THE CASES OF VIJAKUMAR &ANAND

6. In view of the fact that the 2000 Act and Rules were notconsidered, the decision in the case of Vijakumar is certainly nota binding precedent for the proposition that in every case, theScrutiny Committee is required to take recourse to the affinitytest by referring the case to the Vigilance Cell. [Para 29][1129-C-D]

7. The decision in the case of Anand in paragraphs 4 and 5specifically refers to Rule 11 and 12(2) of the ST Rules. ThisCourt recorded similar reasons earlier as held in paragraph 22 ofAnand for coming to the conclusion that affinity test will not alwaysbe mandatory and/or conclusive. [Para 30][1129-D; 1130-F-G]

8. Now, coming to the impugned Judgment in Shilpa VishnuThakur’s case. The Full Bench does not lay down that in everycase where the Scrutiny Committee is dealing with ScheduledTribe claim, reference must be made to the Vigilance Cell. Inclause (ii) (a) of paragraph 40, the Full Bench records that theScrutiny Committee must have regard to the entire body ofevidence, including on the question as to whether the applicanthas satisfied the affinity test. As held earlier, the question of takingrecourse to the affinity test will arise only if the case is referredto Vigilance Cell. In fact, in clause (b) of paragraph 40, the FullBench holds that even if an applicant does not have anydocumentary evidence it will not ipso facto result into invalidationof the caste claim. The reason is that in such case, sub-rule (2)of Rule 12 will apply and the Vigilance Cell will have to hold an

Aenquiry including affinity test. Even in such case, affinity testwill not be conclusive either way as held in clause (2) of paragraph20 in Anand’s case. In clause (c) of the same paragraph, the FullBench of the High Court also holds that even if the applicantpartially satisfies the affinity test, depending upon the nature ofthe evidence on record, the Scrutiny Committee has power toBvalidate the claim. Thus, even clause (c) proceeds on the footingthat the affinity test is not conclusive. [Para 34][1132-D-H; 1133-A]

CONCLUSIONS

9. Thus, to conclude, this Court holds that:C

(a) Only when the Scrutiny Committee after holding anenquiry is not satisfied with the material produced by the applicant,the case can be referred to Vigilance Cell. While referring thecase to Vigilance Cell, the Scrutiny Committee must record briefreasons for coming to the conclusion that it is not satisfied withDthe material produced by the applicant. Only after case isreferred 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 beconclusive either way. When an affinity test is conducted by theEVigilance Cell, the result of the test along with all other materialon record having probative value will have to be taken intoconsideration by the Scrutiny Committee for deciding the castevalidity claim;

(c) In short, affinity test is not litmus test to decide acaste claim and is not an essential part in the process of theFdetermination of correctness of caste or tribe claim in everycase. [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.GCommittee for Scrutiny and Verification of Tribe Claims& Ors. (2012) 1 SCC 113 : [2011] 15 SCR 386; DistrictCollector, Satara & Anr. v. Mangesh Nivrutti Kashid(2019) 10 SCC 166 : [2019] 15 SCR 685 – relied on.Palghat Jilla Thandan Samudhaya Samrakshna SamithiH& Anr. v. State of Kerala (1994) 1 SCC 359 : [1993] 3

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

Suppl. SCR 872; State of Maharashtra & Ors. v. RaviPrakash 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 LevelVigilance Committee, Tamil Nadu & Ors. (2021) 9 SCC811 – referred to.

Vijakumar v. State of Maharashtra & Ors. (2010) 14SCC 489 – Not 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

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2502of 2022.

From the Judgment and Order dated 07.05.2009 of the High Courtof 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 of2019, 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., RajatJoseph, Vivek C. Solshe, Varun V. Solshe, Anjani Kumar Jha, AbhijeetSinha, M/s. Lambat and Associates, Shashwat Goel, Satyajit A. Desai,Ms. Anagha S. Desai, Vijay Raj Singh Chauhan, Anshu Deshpande,

ASiddharth Gautam, Gajanan N. Tirthkar, Rameshwar Prasad Goyal, GaganSanghi, Ms. Ashwariya Dash, Dr. Prashant Pratap, Chander ShekharAshri, Amlan Kumar Ghosh, Ms. Preeti Rane, Ashish Pandey, ApoorvSrivastava, Shirish K. Deshpande, Ms. Rucha Pravin Mandlik, MohitGautam, Shahrukh Ali, Ananta Ramteke, Rahul Sharma, Sudhanshu S.Choudhari, Mahesh P. Shinde, Ms. Rucha A. Pande, M. Veeraragavan,BMs. 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. MayuriRaghuvanshi, Vyom Raghuvanshi, Ms. Akanksha Rathore, Yogesh Malik,Ravindra Keshavrao Adsure, Pravin Patil, Sidheshwar Namdev Biradar,CYash Prashant Sonavane, Siddharath Dharmadhikari, Aaditya AniruddhaPande, 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, AbhishekKumar, Gopal Balwant Sathe, M/s. Black & White Solicitors, SuhaskumarKadam, Bhargava V. Desai, Rahul Gupta, Siddhartha Chowdhury, UtkarshDVats, 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, AjaiKumar Bhatia, Chirag M. Shroff, Ms. Pallavi Sharma, Gaurav Agrawal,Amol B. Karande, Mahesh Karande, Narender Rao Thaneer, Ms.EJaswanti, Ms. Aaina Varma, Nitin Meshram, Narayan Jambhule, RiteshPatil, Ranbir Singh Yadav, Abhijit S. Kamble, Hitesh Kumar Sharma, S.K. Rajora, Ms. Niharika Dewivedi, Narender Pal Sharma, Amit KumarChawla, Ravish Kumar Goyal, Madhvi S. Sawnt, Advs. for the appearingparties.FThe Judgment of the Court was delivered byABHAY S. OKA, J.PRELUDE

1. Pursuant to Article 342 of the Constitution of India, list ofScheduled Tribes was notified by the Constitution (Scheduled Tribes)GOrder, 1950 (for short ‘the ST Order’). By an Act of Parliament of1976, the ST Order was amended. Part IX of the Third Schedule to the1976 Act contains list of notified Scheduled Tribes for the State ofMaharashtra. At Entry no.44 in the Maharashtra List, the following casteshave been notified as Scheduled Tribes:-

“Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur,

Ma Thakar”.

2. Various issues concerning the procedure to be followed for thedetermination of caste claims arose in large number of cases. In thecase of Kumari Madhuri Patil and Another v. Addl. Commissioner,Tribal Development & Others[1], this Court noted that it was necessaryto streamline the procedure for issuance of social status certificates,their scrutiny and their approval. The need to lay down proceduralguidelines was felt as several cases were noticed where candidates onthe basis of false social status certificates obtained admissions toeducational institutions which necessarily had the effect of deprivingadmissions to genuine candidates belonging to Scheduled Castes orScheduled Tribes. There was no law in force at that time laying downthe procedure for the verification of caste status. Therefore, veryexhaustive 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 wronglyobtained on the basis of false social status certificate necessarilyhas the effect of depriving the genuine Scheduled Castes orScheduled Tribes or OBC candidates as enjoined in the Constitutionof the benefits conferred on them by the Constitution. The genuinecandidates are also denied admission to educational institutions orappointments to office or posts under State for want of socialstatus certificate. The ineligible or spurious persons who falselygained entry resort to dilatory tactics and create hurdles incompletion of the inquiries by the Scrutiny Committee. It is truethat the applications for admission to educational institutions aregenerally made by parent, since on that date many time thestudent may be minor. It is the parent or the guardian who mayplay fraud claiming false status certificate. It is, therefore,necessary that the certificates issued are scrutinised at the earliestand with utmost expedition and promptitude. For that purpose,it is necessary to streamline the procedure for the issuanceof social status certificates, their scrutiny and their approval,which may be the following:

1. The application for grant of social status certificate shall bemade to the Revenue Sub-Divisional Officer and Deputy Collector

DEF

or Deputy Commissioner and the certificate shall be issued bysuch 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 competentgazetted officer or non-gazetted officer with particulars of castesand sub-castes, tribe, tribal community, parts or groups of tribesor tribal communities, the place from which he originally hailsfrom and other particulars as may be prescribed by the Directorateconcerned.

3. Application for verification of the caste certificate by the ScrutinyCommittee shall be filed at least six months in advance beforeseeking admission into educational institution or an appointmentto post.

4. All the State Governments shall constitute Committee of threeofficers, namely, (I) an Additional or Joint Secretary or any officerhigh-er in rank of the Director of the department concerned, (II)the Director, Social Welfare/Tribal Welfare/Backward ClassWelfare, as the case may be, and (III) in the case of ScheduledCastes another officer who has intimate knowledge in theverification and issuance of the social status certificates. In thecase of the Scheduled Tribes, the Research Officer who hasintimate knowledge in identifying the tribes, tribal communities,parts of or groups of tribes or tribal communities.

5. Each Directorate should constitute Vigilance Cellconsisting of Senior Deputy Superintendent of Police inover-all charge and such number of Police Inspectors toinvestigate into the social status claims. The Inspector wouldgo to the local place of residence and original place from whichthe candidate hails and usually resides or in case of migration tothe town or city, the place from which he originally hailed from.The vigilance officer should personally verify and collect all thefacts of the social status claimed by the candidate or the parent orguardian, as the case may be. He should also examine the schoolrecords, birth registration, if any.He should also examine theparent, guardian or the candidate in relation to their casteetc. or such other persons who have knowledge of the socialstatus of the candidate and then submit report to the

Directorate together with all particulars as envisaged inthe pro forma, in particular, of the Scheduled Tribes relatingto 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 tribesor tribal communities concerned etc.

6. The Director concerned, on receipt of the report from thevigilance officer if he found the claim for social status to be “notgenuine” or ‘doubtful’ or spurious or falsely or wrongly claimed,the Director concerned should issue show-cause notice supplyinga copy of the report of the vigilance officer to the candidate by aregistered post with acknowledgement due or through the headof the educational institution concerned in which the candidate isstudying or employed. The notice should indicate that therepresentation or reply, if any, would be made within two weeksfrom the date of the receipt of the notice and in no case on requestnot more than 30 days from the date of the receipt of the notice.In case, the candidate seeks for an opportunity of hearing andclaims an inquiry to be made in that behalf, the Director on receiptof such representation/reply shall convene the committee and theJoint/Additional Secretary as Chairperson who shall givereasonable opportunity to the candidate/parent/guardian to adduceall evidence in support of their claim. public notice by beat ofdrum or any other convenient mode may be published in the villageor locality and if any person or association opposes such claim,an opportunity to adduce evidence may be given to him/it. Aftergiving such opportunity either in person or through counsel, theCommittee may make such inquiry as it deems expedient andconsider the claims vis-à-vis the objections raised by the candidateor opponent and pass an appropriate order with brief reasons insupport thereof.

7. In case the report is in favour of the candidate and found to begenuine and true, no further action need be taken except wherethe report or the particulars given are procured or found to befalse or fraudulently obtained and in the latter event the sameprocedure 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

ACommittee with all evidence in his or their support of the claimfor the social status certificates.

9. ……………….

10. ……………..

B11. The order passed by the Committee shall be final and conclusiveonly subject to the proceedings under Article 226 of theConstitution.

12. No suit or other proceedings before any other authority shouldlie.”

(emphasis added)

3. The aforesaid guidelines were formulated obviously in theexercise of jurisdiction under Article 142 of the Constitution as this Courtfound that there was no legislation operating in the field. So far as theState of Maharashtra is concerned, with effect from 18[th] October 2001,Dthe Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes,(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and SpecialBackward Category (Regulation of Issuance and Verification of) CasteCertificate Act, 2000 (for short ‘the 2000 Act’) was brought into force.The 2000 Act contains very elaborate mechanism for regulating theissue and verification of caste certificates to persons belonging to variousEcategories of backward classes. two-level mechanism was provided.The first level is of the Competent Authority issuing caste certificatewhich is valid only subject to verification and grant of validity certificateby the Scrutiny Committee constituted under the 2000 Act. Power isvested in the Scrutiny Committee constituted under Section 6 to verifyFthe correctness of the caste certificates issued by the CompetentAuthority. Section 9 confers powers on the Competent Authority andthe Scrutiny Committee of civil court of summoning and enforcing theattendance of witnesses, requiring the discovery and inspection ofdocuments, receiving evidence on affidavits, requisitioning any publicrecord or copy thereof from any Court or office and issuing CommissionsGfor the examination of witnesses or production of documents. Rule-making power under the 2000 Act was exercised by framing theMaharashtra Scheduled Tribes (Regulation of Issuance and verificationof) Certificate Rules, 2003 (for short “the ST Rules”). Similarly, theMaharashtra Scheduled Castes, De-notified Tribes, (Vimukta Jatis),HNomadic Tribes, Other Backward Classes and Special Backward

Category (Regulation of Issuance and Verification of) Caste CertificateRules, 2012 (for short ‘the SC Rules’) were framed. Elaborate provisionsfor the constitution of the Scrutiny Committee as well as the procedureto be followed by the Competent Authority, and the Scrutiny Committeehave been laid down by the Rules applicable to both categories. Rule 10and Rule 12 of the ST Rules provide for the constitution of VigilanceCells to assist the Scrutiny Committees for Scheduled Castes andScheduled Tribes respectively for conducting an enquiry. The VigilanceCell established under ST Rules consists of Senior DeputySuperintendent of Police, Police Inspectors, Police Constables to assistthe Police Inspector and Research Officer. The SC Rules specificallyprovide for the Vigilance Cell to conduct affinity test. There is somecontroversy about whether the vigilance cell constituted under the STRules has power to conduct affinity test. We are dealing with the saidissue. The Vigilance Cell is required to enquire about anthropologicaland ethnological traits, deities, rituals, customs, mode of marriage, deathceremonies, method of disposal of dead bodies etc. by the castes ortribes or tribal communities concerned. As part of the affinity test, acandidate who has obtained caste certificate from Competent Authorityis tested to ascertain whether he has knowledge about the aforesaidfactors pertaining to the particular caste/tribe.

CONTROVERSY

4. By the order dated 24[th] March 2022, the present group of caseswas referred to larger Bench. The challenge in the lead case (CivilAppeal No. 2502 of 2022) is to decision of Full Bench of the BombayHigh Court in the case of Shilpa Vishnu Thakurv. State ofMaharashtra[2]. The Full Bench of the Bombay High Court has interpretedthe provisions of the 2000 Act as well as ST Rules. The impugnedjudgment discusses and lays down various procedural aspects to befollowed by the Scrutiny Committee. The Full Bench of the BombayHigh Court has held that the affinity test is an integral part of thedetermination of the correctness of the caste claim. In the order dated24[th] March 2022, Bench of this Court noted that there was conflictof views expressed in two decisions of coordinate Benches of this Court.The first case is of Vijakumar v. State of Maharashtra & Ors.[3] andthe second case is of Anand v. Committee for Scrutiny and

2 2009 (3) Mh.LJ (F.B) 9953 (2010) 14 SCC489

AVerification of Tribe Claims & Ors.[4]. In paragraph 9 of the decisionin the case of Vijakumar[3], this Court held that if candidate fails theaffinity test at any stage, caste validity certificate cannot be granted tohim. In the case of Anand[4], it was held that the affinity test is not theonly criteria for deciding caste claim based on caste certificate issuedby Competent Authority. It was held that it can be used to corroborateBthe documentary evidence. The question to be decided is whetherparamount importance should be given to the affinity test whileadjudicating upon caste claim on the basis of caste certificate issuedby Competent Authority. In other words, the question is whether theaffinity test is litmus test for deciding caste claim.CCONTENTIONS OF THE PARTIES

5. Main submissions have been made on behalf of the appellantsin Civil Appeal No. 2502 of 2022 by Shri Shekhar Naphade, learnedsenior counsel. He has taken us through the 2000 Act and ST Rules.Relying upon the decision in the case of Kumari Madhuri Patil[1], heDurged that the documents which pertain to the pre-Constitution periodhave the greatest probative value. He submits that if such documents insupport of caste claim are presented before the Scrutiny Committee,and if the same are found to be relevant and genuine, there is no occasionfor the Scrutiny Committee to order an enquiry through Vigilance Cell.ESimilarly, if blood relatives of the person applying for verification beforethe 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 castecertificate. He invited our attention to Rule 12 of the ST Rules whichlays down the procedure to be followed by the Scrutiny Committee. HeFpointed out that sub-rule (2) provides that only if Scrutiny Committee isnot satisfied with the documentary evidence produced by the applicant,it can order enquiry through Vigilance Cell. He pointed out that thequestion of the conduct of the affinity test arises only after the case isforwarded to the Vigilance Cell after the Scrutiny Committee comes toGthe conclusion that the documents produced by the applicant are notsufficient to prove the caste claim. He submitted that the ScrutinyCommittee could not mechanically refer case to the Vigilance Cellwithout recording satisfaction that the documents produced by theapplicant were not sufficient to validate the casteclaim.4 (2012) 1 SCC 113H6. He relied upon decision of the Bombay High Court in thecase of Apoorva d/o Vinay Nichale v. Divisional Committee[5]. Hesubmitted that if an applicant successfully establishes his caste claim onthe basis of documents relating to the pre-Constitution period ordocuments having probative value or caste validity certificate grantedto his blood relative, it is not necessary to apply the affinity test. In short,his submission is that the affinity test is not litmus test. He submittedthat the view taken by this Court in the case of Anand[4]is based on theinterpretation of the 2000 Act and the ST Rules. He pointed out thatVijakumar’s[3] case has been decided by this Court before the ST Rulescame into force. He would urge that there are no reasons recorded inthe decision to suggest that the affinity test in every case is mandatory.The learned counsel pressed into service decision of this Court in thecase of District Collector, Satara & Anr. v. Mangesh NivruttiKashid[6]. He pointed out that this Court clearly stated that VigilanceCell’s assistance is not required to be taken in every case but only whenthe Scrutiny Committee is not satisfied with the documents produced bythe applicant. He also pointed out that an applicant who is member ofa Scheduled Tribe and who has been staying in an urban area may notbe conversant with the traits, characteristics, ceremonies, and deities ofthe tribe. Learned senior counsel also relied upon decision of the BombayHigh Court in Writ Petition No.4198 of 2005 dated 1[st] August 2018,which holds that in view of the decision of this Court in the case ofAnand[4], the impugned judgment in the case of Shilpa Vishnu Thakur[2]stands impliedly overruled. He would, therefore, submit that the impugnedjudgment calls for modification and it must be held that the affinity test isnot of paramount importance while deciding caste claim in accordancewith the 2000 Act and the ST rules.

7. Smt. V. Mohna, learned senior counsel appearing in connectedcase heavily relied upon decision of this Court in the case of PalghatJilla Thandan Samudhaya Samrakshna Samithi & Anr. v. State ofKerala[7]. She submitted that the State Government or Scrutiny Committeecannot hold any enquiry to determine whether or not some particularcommunity falls within the ST order. She submitted that the StateGovernment cannot make an effort to indirectly modify the ThirdSchedule under the ST Order as the modification can be carried out only

5 2010 (6) Mh.LJ page 401

6 (2019) 10 SCC 166

7 (1994) 1 SCC 359

CDE

Ain accordance with Article 341 of the Constitution. Her submission isthat in given case if the documents having probative value show thatthe applicant belongs to the Thakur caste or belongs to any other castenotified in the Third Schedule to the 1976 Act, there is no question ofholding any affinity test.

B8. Shri Shyam Divan, the learned senior counsel appearing for theState of Maharashtra pointed out that it is judicially recognised that thesurname Thakur is shared by both forward and backward classcommunities. He placed reliance on the decision in the case of State ofMaharashtra & Ors. v. Ravi Prakash Babulalsing Parmar & Anr.[8]He pointed out that even in the impugned judgment, this factual aspectChas been elaborately dealt with. He pointed out that under the provisionsof the 2000 Act, an inquiry is required to be made at three stages. Thefirst is an inquiry by Competent Authority for ascertaining thegenuineness of the claim of the applicant on the basis of documentsproduced by him. If prima facie, the Competent Authority is satisfiedDwith the documents, it has to issue caste certificate which is subject toverification. The second stage is of domestic and school enquiry to beconducted by Vigilance Cell which will include an affinity test and thethird stage is of verification and scrutiny by the Scrutiny Committeewhich is quasi-judicial authority.E9. In the written submissions filed by him, he has contended thateven if validity certificates have been issued by the Scrutiny Committeein case of near relatives of the applicant, the Scrutiny Committee has toapply an affinity test as an integral part of the process of assessing theentire evidence again to ensure that illegality is not perpetuated. Hesubmitted that there are cases where validity certificate is issued to aFnear relative by mistake or fraud or without holding an enquiry ascontemplated by law or without recording any reasons. submission ismade that the Scrutiny Committee can also go into the question whetherthe earlier validity certificate has been issued based on an erroneousorder of the High Court. The submission canvassed is what is held inGparagraph 22.1 in the decision in Anand’s case[4] is erroneous.

10. It is submitted on behalf of the State Government that in agiven case, the applicant may not be fully conversant with the traits,religious ceremonies of the tribe or deities etc. Therefore, the Vigilance8 (2007) 1 SCC 80

Cell is required to examine even the parents of the applicant. The StateGovernment urged that in the case of Scheduled Tribe Thakur, differenttest will apply as persons with this surname belong even to forwardclasses. Therefore, in the case of the tribe claim of Thakur, pre-Constitution documents containing the candidate’s surname as Thakurare of no consequence. Therefore, in the case of the tribe claim ofThakur, an affinity test has to be applied. The submission of the State isthat the view taken in the case of Vijakumar[3] is correct and necessaryclarifications will have to be issued regarding findings rendered in thecase of Anand[4 ]in paragraph 22.

11. Shri Ravi K. Deshpande, the learned senior counsel appearingin one of the connected matters urged that the Scrutiny Committeeconstituted under the 2000 Act is not quasi-judicial authority. Hesubmitted that in the case of Dayaram v. Sudhir Batham & Ors.[9], thisCourt held that Scrutiny Committee is not quasi-judicial authority but itis an administrative authority. He also urged that the decision in the caseof Dayaram[9] has been followed by this Court in the case of J. Chitra v.District Collector & Chairman, State Level Vigilance Committee,Tamil Nadu & Ors.[10] He submitted that the finding of the High Courtthat the affinity test is an integral part of an enquiry by the ScrutinyCommittee has no legal basis at all. His submission is that Anand’scase[4] has been correctly decided and to that extent, the impugnedjudgment in the case of Shilpa Vishnu Thakur[2] will have to be modified.One of the interveners also relied upon the provisions of the SC Rulesand submitted that though the same specifically empower the VigilanceCell to conduct affinity tests, such provision is absent in the ST Rules.

OUR VIEW

12. We have already made reference in detail to the directionsissued by this Court in the case of Kumari Madhuri Patil[1]. co-ordinate Bench in the case of Dayaram[9], in paragraph 35 of its decision,held that the directions issued by this Court in paragraph 13 of KumariMadhuri Patil’s case[1 ]were issued as there was no statute governingthe field of verification of caste claims of Scheduled Castes, ScheduledTribes, Nomadic Tribes and Other Backward Classes. Therefore, it washeld that the directions issued in the case of Kumari Madhuri Patil[1]would apply only until appropriate legislation is enacted. Hence, after

9 (2012) 1 SCC 33310 (2021) 9 SCC 811

Athe 2000 Act came into force, only the provisions of the said enactmentwill prevail.

13. Therefore, we will have to interpret the provisions of the 2000Act. The 2000 Act came into force on 18[th] October 2001. As can benoticed from the title, the 2000 Act deals with the regulation of issuanceBand verification of caste certificates in respect of persons belonging toScheduled Tribes, De-notified tribes, Nomadic Tribes, Other BackwardClasses and Special Backward Category. Under the scheme of the 2000Act, an application for the grant of caste certificates is to be made to theCompetent Authority as defined under Section 2(b). The CompetentAuthority is mandated to follow the procedure prescribed by the Rules.CAfter following the procedure prescribed, if the Competent Authority issatisfied that the claim made by the candidate is genuine, it can issue acaste certificate in prescribed form. Sub-section (1) of Section 4, forgood reasons, specifically provides that if the application is rejected, thereasons for the rejection must be recorded. As an order rejecting theDapplication for the grant of caste certificate is made appealable undersub-section (1) of Section 5, the appellate authority should have the benefitof the reasons for rejection.

14. Under Section 9, the Competent Authority, Appellate Authorityand Scrutiny Committee have been granted powers of Civil Court underEthe Code of Civil Procedure, 1908 of summoning and enforcing theattendance of any person and examining him on oath, requiring thediscovery and production of any documents, receiving evidence onaffidavits, requisitioning any public record or copy thereof from any Courtor office and issuing commissions for the examination of witnesses ordocuments. However, the nature and extent of the inquiry which isFrequired to be made by the Competent Authority and by the ScrutinyCommittee differ. The 2000 Act has introduced two-tier system forthe verification of caste claims. In view of the express language used bysub-section (2) of Section 4, the caste certificate issued by the CompetentAuthority does not conclusively establish the caste claim of the applicant.GThe person to whom the caste certificate is granted by the CompetentAuthority cannot claim that his caste status has been established. Thecaste certificate issued by Competent Authority becomes conclusiveevidence of the caste stated therein only after detailed enquiry ascontemplated by the 2000 Act and rules framed thereunder is made bythe Scrutiny Committee and the certificate is validated. Therefore, when

an application made under Section 3 for the grant of caste certificateis considered by the Competent Authority, very detailed scrutiny ofmaterial produced by the applicant is not contemplated. What iscontemplated is prima facie satisfaction of the genuineness of the casteclaim and on the basis of such satisfaction that caste certificate ascontemplated by sub-section (1) of Section 4 can be issued. Therefore,sub-section (1) of Section 4 specifically requires the Competent Authorityto record reasons for rejecting the application but there is no suchrequirement incorporated of giving reasons while granting castecertificate. However, the Caste Scrutiny Committee is expected to recordreasons both for validating and not validating the caste certificate. Sub-rule (6) of Rule 4 of the ST Rules provides that the Competent Authorityshall verify the documents produced by the applicant with the originaldocuments and if satisfied with the correctness of the information,documents and evidence furnished by the applicant, it shall issue aScheduled Tribe certificate within 15 days from the date of receipt ofthe application. The time limit fixed under the said Rule is also pointerwhich suggests that the enquiry to be made by the Competent Authorityis summary enquiry and detailed enquiry is not contemplated. Themandate of issuing caste certificates within 15 days cannot beaccomplished if the Competent Authority is to hold detailed enquiry onpar with the one which is required to be held by the Scrutiny Committee.

15. The law contemplates very detailed scrutiny of the caste claimby the Scrutiny Committee. If both the Competent Authority and theCaste Scrutiny Committee were to make the same degree of scrutinyand detailed enquiry into caste claims, the very object of the two-tierscrutiny will be frustrated. Section 8 provides that the burden of provinga caste claim before the Competent Authority and the Scrutiny Committeeis on the applicant. For discharging the said burden before the CompetentAuthority, it is enough if the applicant produces prima facie material toshow that his caste claim is genuine. The burden put by Section 8 on theapplicant to prove his caste status before the Scrutiny Committee ismuch higher than the burden which he is required to discharge beforethe Competent Authority.

16. Sub-section (1) of Section 10 contemplates that if an applicant,on the basis of caste certificate issued by the Competent Authorityobtains any benefit such as employment or admission to an educationalinstitution, on cancellation of the caste certificate by the Scrutiny

ACommittee, the admission secured to the educational institution oremployment is required to be cancelled forthwith. The scheme of Section10 is that applicant cannot hold on to any benefit received by him on thebasis of caste certificate issued by the Competent Authority which issubsequently cancelled by the Scrutiny Committee.

B17. Section 6 deals with the procedure to be followed by the CasteScrutiny Committee for verification of caste certificates. Sub-section(4) of Section 6 lays down that the Scrutiny Committee shall follow theprocedure as laid down by the Rules framed under the 2000 Act. Rule 4of the ST Rules lays down the procedure to be followed by the CompetentAuthority. We must note that under Rule 10, provision has been madeCfor constituting Vigilance Cell to assist the Scheduled Tribes CasteScrutiny Committee in conducting an enquiry. As noted earlier, theVigilance Cell consists of Police Officers of three different ranks asprovided therein and Research Officer. Rule 11 provides details of thedocuments the applicant must submit to verify the Scheduled TribesDcertificate. Sub-rules 2 and 3 of Rule 11 read thus:

“11.(1)…………………….

(2) The applicant shall submit the following documents withhis application for verification of his Scheduled Tribe Certificate

(a)Original documents.—

(i)the original Scheduled Tribe Certificate of theapplicant along with one attested copy,

(ii) an affidavit in Form F;

(b)Documents of which, only attested copies are to besubmitted in respect of applicant—

(i)Primary School leaving certificate.

(ii) An extract of school admission register.

G(iii) An extract of birth register.

(c)Documents in respect of father,—

(i)An extract of birth register.

(ii) Primary school leaving certificate.

(iii) Extract of school admission register.

(iv) Scheduled Tribe Certificate.

(v) If father is in service, the extract of the pages ofthe service record (book) which contain religion andtribe entry.

(vi) If father is illiterate, the primary school leavingcertificate of the real elderly blood relatives of thepaternal side of the applicant and extract of schooladmission register.

(d) Other documents,—

(i)Revenue record like, birth register, extract of 7/12,Sale Deed etc.

(ii) Any other relevant documents in support of hisScheduled Tribe claim.

(iii) Affidavits of the near relatives whose ValidityCertificates are submitted in support of theScheduled Tribe claim of the applicant.

(3) The applicant shall submit original certificates and documentsfor verification whenever required by the Scrutiny Committee.”

18. Rule 12 lays down the procedure to be followed by the ScrutinyCommittee. It contains provision regarding forwarding case to theVigilance Cell to hold an enquiry. Rule 12 reads thus:

“12. Procedure to be followed by Scrutiny Committee.

(1) On receipt of the application, the Scrutiny Committee or aperson authorised by it shall scrutinise the application, verify theinformation and documents furnished by the applicant, and shallacknowledge the receipt of the application. The Member Secretaryshall register the application, received for verification, in the-registerprescribed by the Chairman.

(2) If the Scrutiny Committee is not satisfied with thedocumentary evidence produced by the applicant theScrutiny Committee shall forward the applications to theVigilance Cell for conducting the school, home and otherenquiry.

(3) The Vigilance Officer shall go to the local place ofresidence and original place from which the applicant hailsand usually resides, or in case of migration, to the town orcity or place from which he originally hailed from.

(4) The Vigilance Officer shall personally verify and collectall the facts about the social status claimed by the applicantor his parents or the guardian, as the case may be.

(5) The Vigilance Cell shall also examine the parents orguardian or the applicant for the purpose of verification oftheir Tribe, of the applicant.

(6) After completion of the enquiry, the Vigilance Cell shall submitits report to the Scrutiny Committee who will in turn scrutinise thereport submitted by the Vigilance Cell.

and if the Scrutiny Committee is satisfied that the claim of theapplicant is genuine and true, the Scrutiny Committee may issuethe validity certificate. The validity certificate shall be issued inForm G.

(8) If the Scrutiny Committee, on the basis of the Vigilance Cellreport and other documents available, is not satisfied about theclaim of the applicant, the Committee shall issue show causenotice to the applicant and also serve copy of the report of theVigilance Officer by registered post with acknowledgment due.A copy shall also be sent to the Head of the Departmentconcerned, if necessary. The notice shall indicate that therepresentation or reply, if any, should be made within fifteen daysfrom the date of receipt of the notice and in any case not morethan thirty days from the date of receipt of the notice. In case theapplicant requests for adjournment or extension of the time-limit,reasonable time, may be granted.(9) (a) After personal hearing if the Scrutiny Committee is satisfiedregarding the genuineness of the claim, Validity Certificate shallbe issued in Form G.

(b) After personal hearing, if the Scrutiny Committee is notsatisfied about the genuineness of the claim and correctnessof the Scheduled Tribe Certificate, it shall pass an order of

cancellation and of confiscation of theCertificate andcommunicate the same to the Competent Authority for takingnecessary entries in the register and for further necessaryaction. The Scheduled Tribe Certificate shall then be stampedas “ cancelled and confiscated”.

19. Sub-rule (2) of Rule 12 clearly provides that only if the ScrutinyCommittee is not satisfied with the documentary evidence produced bythe applicant, it shall forward the application to the Vigilance Cell forconducting the school, home and other enquiry. Therefore, in every case,as matter of routine, the Scrutiny Committee cannot mechanicallyforward the application to Vigilance Cell for conducting an enquiry. Whensub-rule (2) of Rule 12 contemplates that only if the Scrutiny Committeeis not satisfied with the documents produced by the applicant that thecase should be referred to Vigilance Cell, it follows that the ScrutinyCommittee is required to pass an order recording brief reasons why it isnot satisfied with the documents produced by the applicant. Beforereferring the case to the Vigilance Cell, application of mind to the materialproduced by the applicant is required and therefore, the application ofmind must be reflected in the order sheets of the Scrutiny Committee.

20. It is not possible to exhaustively lay down in which cases theScrutiny Committee must refer the case to Vigilance Cell. One of thetests is as laid down in the case of Kumari Madhuri Patil[1]. It laysdown that the documents of the pre-Constitution period showing thecaste of the applicant and their ancestors have got the highest probativevalue. For example, if an applicant is able to produce authentic and genuinedocuments of the pre-Constitution period showing that he belongs to atribal community, there is no reason to discard his claim as prior to 1950,there were no reservations provided to the Tribes included in the STorder. In such case, reference to Vigilance Cell is not warranted atall.

21. In the impugned judgment in Civil Appeal No. 2502 of 2022(Shilpa Vishnu Thakur’s case[2]), the Full Bench of the Bombay HighCourt has noted that people having the surname “Thakur” belong toboth forward castes and various backward castes. Therefore, the FullBench may be right in saying that in every case, only on the basis of thesurname Thakur, it cannot be concluded by the Scrutiny Committee thatthe applicant belongs to Scheduled Tribe Thakur notified in the Entry 44of the Maharashtra list. However, we must note that in the case of

Aperson having the surname Thakur, there may be evidence in the formof entry of the name of the caste as Tribe or Scheduled Tribe in theland records, school or college records or any official records concerningthe applicant or his ancestors. Only on the ground that the persons havingthe surname Thakur may belong to forward caste as well, it is notnecessary that in every case, the Scrutiny Committee should send theBcase to Vigilance Cell. It all depends on the nature of the documentsproduced before the Caste Scrutiny Committee and the probative valueof the documents. Therefore, whenever caste claim regarding ThakurScheduled Tribe is considered, the Caste Scrutiny Committee in everycase should not mechanically refer the case to the Vigilance Cell forCconducting an enquiry including affinity test. The reference to theVigilance Cell can be made only if the Scrutiny Committee is not satisfiedwith the material produced by the applicant.22. We can also contemplate one more scenario which is found inmany cases. These are the cases where the applicant relies upon casteDvalidity certificates issued to his blood relatives. Obviously, such validitycertificate has to be issued either by the Scrutiny Committee constitutedin terms of the directions issued in Kumari Madhuri Patil’s case[1] orconstituted under the Rules framed under the 2000 Act. In such case,firstly, the Scrutiny Committee must ascertain whether the certificate isgenuine. Secondly, the Scrutiny Committee will have to decide whetherEthe applicant has established that the person to whom the validity certificaterelied upon by him has been issued is his blood relative. For that purpose,the applicant must establish his precise and exact relationship with theperson to whom the validity certificate has been granted. Moreover, anenquiry will have to be made by the Scrutiny Committee whether theFvalidity certificate has been granted to the blood relative of the applicantby the concerned Scrutiny Committee after holding due enquiry andfollowing due procedure. Therefore, if the Scrutiny Committee has issueda validity certificate contemplated in terms of the decision in the case ofKumari Madhuri Patil[1], the examination will be whether the enquiry

contemplated by the said decision has been held. If the certificate reliedGupon is issued after coming into force of the 2000 Act, the ScrutinyCommittee will have to ascertain whether the concerned ScrutinyCommittee had followed the procedure laid down therein as well as inthe ST Rules or the SC Rules, as the case may be. For this verification,the Scrutiny Committee can exercise powers conferred on it by SectionH9(d) by requisitioning the record of the concerned Caste Scrutiny

Committee, which has issued the validity certificate to the blood relativeof the applicant. If the record has been destroyed, the Scrutiny Committeecan ascertain whether due enquiry has been held on the basis of thedecision of the Caste Scrutiny Committee by which caste validity hasbeen granted to the blood relative of the applicant. If it is established thatthe validity certificate has been granted without holding proper inquiryor without recording reasons, obviously, the caste scrutiny committeecannot validate the caste certificate only on the basis of such validitycertificate of the blood relative.23. In given case, the Scrutiny Committee may be satisfied thatthe caste validity certificate relied upon by the applicant has been issuedafter making lawful enquiry. But if the Scrutiny Committee is of theview that the applicant has not clearly established that the person towhom caste validity certificate produced on record has been granted ishis blood relative, in terms of sub-rule (2) of Rule 12 of the ST Rules, theCaste Scrutiny Committee will have to refer the case for conducting anenquiry through Vigilance Cell. In such case, the Vigilance Cell can bedirected by the Scrutiny Committee to conduct an enquiry limited to therelationship claimed by the applicant with the person in whose favourthe caste validity certificate has been issued. If, on the basis of thereport of the Vigilance Cell, the Scrutiny Committee is satisfied that theperson in whose favour caste validity certificate has been issued is ablood relative of the applicant and lawful enquiry has been conductedbefore issuing the validity certificate, the Scrutiny Committee will haveto issue validity certificate even if the applicant does not satisfy theaffinity test. For example, if it is established that the father or grandfatherof the applicant has been given caste validity certificate after holding alawful enquiry in accordance with law, the Caste Scrutiny Committeecannot hold that the grandfather or father of the applicant, as the casemay be, belongs to Scheduled Tribe but the applicant does not belong toScheduled Tribe. Only if the relationship as pleaded by the applicant isnot established, the other evidence produced by the applicant and theresult of the affinity test can be taken into consideration by the ScrutinyCommittee.

24. As provided in sub-rule (7) of Rule 12 of the ST Rules, theVigilance Cell’s report is not conclusive. If on the basis of the report ofthe Vigilance Cell and other evidence on record, the Scrutiny Committeecomes to conclusion that the caste claim is genuine, caste validity

Acertificate can be issued. Only on the ground that the report of vigilancecell is in favour of the applicant, validity certificate cannot be mechanicallygranted without application of mind. If the report of the Vigilance Cell isagainst the applicant, his caste claim cannot be rejected only on thebasis of the report of the Vigilance Cell without providing copy of thereport to the applicant and without giving him an opportunity of beingBheard on the report. After giving an opportunity to the applicant to makesubmissions on the report, the Scrutiny Committee may reject the casteclaim. In given case, the Scrutiny Committee can also record findingthat the caste claim is genuine. It all depends on the facts of each case.

AFFINITY TEST

25. Now, we come to the controversy regarding the affinity test.In clause (5) of Paragraph 13 of the decision in the case of KumariMadhuri Patil[1] it is held that in the case of Scheduled Tribes, the VigilanceCell will submit report as regards peculiar anthropological andethnologicaltraits, deities, rituals, customs, mode of marriage, deathDceremonies, methods of burial of dead bodies etc. in respect of theparticular caste or tribe. Such particulars ascertained by the VigilanceCell in respect of particular Scheduled Tribe are very relevant for theconduct of the affinity test. The Vigilance Cell, while conducting anaffinity test, verifies the knowledge of the applicant about deities of theEcommunity, customs, rituals, mode of marriage, death ceremonies etc. inrespect of that particular Scheduled Tribe. By its very nature, such anaffinity test can never be conclusive. If the applicant has stayed in biggerurban areas along with his family for decades or if his family has stayedin such urban areas for decades, the applicant may not have knowledgeof the aforesaid facts. It is true that the Vigilance Cell can also questionFthe parents of the applicant. But in given case, even the parents maybe unaware for the reason that for several years they have been stayingin bigger urban areas. On the other hand, person may not belong to theparticular tribe, but he may have good knowledge about the aforesaidaspects. Therefore, Shri Shekhar Naphade, the learned senior counsel,Gis right when he submitted that the affinity test cannot be applied as alitmus test. We may again note here that question of conduct of theaffinity test arises only in those cases where the Scrutiny Committee isnot satisfied with the material produced by the applicant.

26. There is an argument made that as far as SC Rules areHconcerned, clause (d) of Rule 13 specifically provides for Vigilance Cell

conducting an affinity test and there is no such pari materia provision inthe ST Rules. We are unable to accept this submission as sub-rule (4) ofRule 12 of the ST Rules enjoins the vigilance officer to collect factsabout the social status of the applicant or his parents, as the case maybe. Therefore, sub-rule (5) provides for the examination of the applicantand his parents. For verification of social status as contemplated by sub-rule (4) of Rule 12 of the ST Rules, in given case, affinity test can beresorted to by the Vigilance Cell.

WHETHER CASTE SCRUTINY COMMITTEEPERFORMS QUASI-JUDICIAL FUNCTION

27. Before we go into the decisions in the cases of Vijakumar[3]andAnand[4], we need to deal with an argument made by one of theinterveners that the Scrutiny Committee is not quasi-judicial authority.The said submission is based on decision of coordinate Bench of thisCourt in the case of Dayaram[9]. In paragraph 35, the decision in thecase of Dayaram[9] holds thus:

“35. The Scrutiny Committee is not an adjudicating authority likea court or tribunal, but an administrative body which verifies thefacts, investigates into specific claim (of caste status) andascertains whether the caste/tribal status claimed is correct ornot. Like any other decisions of administrative authorities, theorders of the Scrutiny Committee are also open to challenge inproceedings under Article 226 of the Constitution. Permitting civilsuits with provisions for appeals and further appeals would defeatthe very scheme and will encourage the very evils which thisCourt wanted to eradicate. As this Court found that largenumber of seats or posts reserved for the Scheduled Castesand Scheduled Tribes were being taken away by boguscandidates claiming to belong to Scheduled Castes andScheduled Tribes, this Court directed the constitution ofsuch Scrutiny Committees, to provide an expeditious,effective and efficacious remedy, in the absence of anystatute or legal framework for proper verification of falseclaims regarding SCs/STs status. This entire schemein Madhuri Patil [(1994) 6 SCC 241 : 1994 SCC (L&S) 1349: (1994) 28 ATC 259] will only continue till the legislatureconcerned makes an appropriate legislation in regard toverification of claims for caste status as SC/ST and issue of

EFG

1128SUPREME COURT REPORTS

[2023] 3 S.C.R.

Acaste certificates, or in regard to verification of caste certificatesalready obtained by candidates who seek the benefit of reservation,relying upon such caste certificates.”

(emphasis added)

28. We must note here that this Court was dealing in the saidBdecision with case arising from the State of Madhya Pradesh wherethere was no statute in existence which covered the field occupied byKumari Madhuri Patil’s case[1]. Therefore, the observations made inthe said decision are in the context of powers of the Scrutiny Committeeordered to be created under the decision in the case of Kumari MadhuriCPatil[1]. In the cases of Dayaram[9]and Jay Chitra[10], this Court has notdealt with the 2000 Act or similar enactment applicable to any otherState. On conjoint reading of the 2000 Act as well as ST and SC Rulesframed thereunder, it is impossible to conclude that the ScrutinyCommittee discharges only administrative functions. The ScrutinyCommittee under the 2000 Act has been entrusted with various powersDof the Civil Court under the Code of Civil Procedure, 1908. The powersinclude power to enforce the attendance of any witness, to receiveevidence on affidavits, to issue commissions for the examination ofwitnesses or documents etc. The scheme of the 2000 Act and both SCand ST Rules provides for the Scrutiny Committee holding an enquiry onEthe caste claim of the applicant, if necessary, after examining the applicanton oath, recording evidence of witnesses and calling for documents andrecords etc. The Scrutiny Committee is expected to record reasons forgranting and rejecting the prayer for issue of caste validity certificates.Thus, the Scrutiny Committee has all the trappings of quasi-judicialauthority.F

DECISIONS IN THE CASES OF VIJAKUMAR &ANAND

29. Now, we come to the decision in the case of Vijakumar[3]. Aperusal of the decision in the case of Vijakumar[3] shows that Bench ofGtwo Hon’ble Judges dealt with issue of tribe claim arising from theState of Maharashtra. careful perusal of the decision shows that thereis not even reference to the ST Rules in the said decision. The attentionof the Court was not invited to sub-rule (2) of Rule 12, which lays downthat the case can be referred to the Vigilance Cell only if the ScrutinyCommittee is not satisfied with the material produced by the applicant.H

Without referring to the provisions of the 2000 Act as well as SC and STRules, in paragraph 9 of Vijakumar’s case[3], it is held that:-

“9. Having heard the learned counsel for the parties, we are ofthe considered opinion that there is hardly any merit in thecontentions raised on behalf of the appellant. The affinity testwas completed by the Vigilance Officer as well as by the ScrutinyCommittee. The certificate has to be validated only after it provesfactually and legally correct at the two stages; firstly, at the stageof issuance and secondly, at the stage of verification. If it fails theaffinity test at either of these stages, the validity of the certificatecannot be sustained.”

Hence, in view of the fact that the 2000 Act and Rules were notconsidered, the decision in the case of Vijakumar[3] is certainly not abinding precedent for the proposition that in every case, the ScrutinyCommittee is required to take recourse to the affinity test by referringthe case to the Vigilance Cell.

30. The decision in the case of Anand[4] in paragraphs 4 and 5specifically refers to Rule 11 and 12 (2) of the ST Rules. In paragraph22, this Court held thus:

“22. It is manifest from the aforeextracted paragraph that thegenuineness of caste claim has to be considered not only on athorough examination of the documents submitted in support ofthe claim but also on the affinity test, which would include theanthropological and ethnological traits, etc., of the applicant.However, it is neither feasible nor desirable to lay down an absoluterule, which could be applied mechanically to examine caste claim.Nevertheless, we feel that the following broad parameters couldbe kept in view while dealing with caste claim:

(i)While dealing with documentary evidence, greater reliancemay be placed on pre-Independence documents becausethey furnish higher degree of probative value to thedeclaration of status of caste, as compared to post-Independence documents. In case the applicant is the firstgeneration ever to attend school, the availability of anydocumentary evidence becomes difficult, but that ipso factodoes not call for the rejection of his claim. In fact, the merefact that he is the first generation ever to attend school,

some benefit of doubt in favour of the applicant may begiven. Needless to add that in the event of doubt on thecredibility of document, its veracity has to be tested onthe basis of oral evidence, for which an opportunity has tobe afforded to the applicant;

(ii)While applying the affinity test, which focuses on theethnological connections with the Scheduled Tribe, acautious approach has to be adopted. few decadesago, when the tribes were somewhat immune to thecultural development happening around them, theaffinity test could serve as determinative factor.However, with the migrations, modernisation andcontact with other communities, these communitiestend to develop and adopt new traits which may notessentially match with the traditional characteristicsof the tribe. Hence, the affinity test may not beregarded as litmus test for establishing the link ofthe applicant with Scheduled Tribe. Nevertheless,the claim by an applicant that he is part of ScheduledTribe and is entitled to the benefit extended to thattribe, cannot per se be disregarded on the groundthat his present traits do not match his tribe’s peculiaranthropological and ethnological traits, deity, rituals,customs, mode of marriage, death ceremonies,method of burial of dead bodies, etc. Thus, the affinitytest may be used to corroborate the documentaryevidence and should not be the sole criteria to rejecta claim.”

(emphasis added)

We have recorded similar reasons earlier for coming to theconclusion that affinity test will not always be mandatory and/orconclusive.G

31. Paragraph 19 of the decision in the case of Anand[4] reiteratesthe position that Vigilance Cell enquiry can be ordered only when theScrutiny Committee is not satisfied with the materials produced by theapplicant. On this aspect, we may make useful reference to decisionof this Court in the case of District Collector, Satara[6]. This decision isHpenned down by one of us (Sanjay Kishan Kaul, J.) which makes an in-

depth analysis of the ST Rules and in particular, Rule 12. In paragraph 9,this Court held thus:

“9. … … … … … … … … … … … … … … …

reading of the aforesaid Rules shows that the role of theVigilance Cell was restricted as compared to the role envisagedunder Madhuri Patil case [Madhuri Patil v. Commr., TribalDevelopment, (1994) 6 SCC 241 : 1994 SCC (L&S) 1349] ,inasmuch as the assistance to be provided to the ScrutinyCommittee was not in every case, but only if the ScrutinyCommittee was not satisfied with the documentary evidenceproduced by the applicant.”

(emphasis added)

32. Therefore, as observed earlier, the decision in the case ofVijakumar[3 ]cannot be read as binding precedent laying down legalprinciple that in every case of verification of caste claim, the CasteScrutiny Committee is under mandate to refer the case to the VigilanceCell. As under the scheme of ST Rules, affinity test is to be conductedby the Vigilance Cell, it follows that question of conducting of affinitytest will arise only when case is made out for referring the case toVigilance Cell. If the Scrutiny Committee, after holding an enquiry issatisfied with the material produced on record, without referring thecase to the Vigilance Cell, the Caste Scrutiny Committee is under amandate to grant validity to the caste certificate. As noted earlier, in agiven case, the Scrutiny Committee can order limited inquiry by theVigilance Cell. For example, if an applicant is relying upon caste validitycertificate granted to his blood relative and the Scrutiny Committee, afterfinding that the certificate is issued after due inquiry entertains doubtabout the relationship pleaded, it can direct the Vigilance Cell to makeinquiry only about the relationship.

33. Now we come to the impugned Judgment in Shilpa VishnuThakur’s case[2]. The questions framed for consideration by the FullBench are in paragraph 4 which reads thus:

“(i) Should the paramount consideration in determining the casteclaim of person be documentary evidence or, as the SupremeCourt held, “anthropological moorings and ethnological kinship”;and is the “crucial affinity test” relevant and germane for such adecision?

A(ii)(a) In cases where the documents produced by personclaiming to be belonging to particular caste satisfy therequirement, for example, in the case of “Thakur”, if all thedocuments produced/filed and relied upon by candidate denotehis caste as “Thakur” then, without validating the caste claimwith reference to the “crucial affinity test”, should the caste claimBbe validated or not?

(b) In case where person is not in possession of any documentto meet the requirements of particular caste claim can the claimbe scrutinized on the basis of the “crucial affinity test”, and avalidity certificate be issued?

(c) Where person who claims to belong to particular caste hassome documents in his favour and/or partially satisfies the crucialaffinity test, can the claim be certified and is the candidate entitledto his caste certificate being validated?” *

34. The conclusions of the Full Bench have been recorded inDparagraph 40. In clause (i) of paragraph 40, the Full Bench of the HighCourt records that under Rule 12(2), the Scrutiny Committee, if it is notsatisfied with the documentary evidence produced, has to forward theapplication to Vigilance Cell for holding school, home and other enquiry.The Full Bench does not lay down that in every case where the ScrutinyECommittee is dealing with Scheduled Tribe claim, reference must bemade to the Vigilance Cell. In clause (ii) (a) of paragraph 40, the FullBench records that the Scrutiny Committee must have regard to theentire body of evidence, including on the question as to whether theapplicant has satisfied the affinity test. As held earlier, the question ofFtaking recourse to the affinity test will arise only if the case is referredto Vigilance Cell. In fact, in clause (b) of paragraph 40, the Full Benchholds that even if an applicant does not have any documentary evidenceit will not ipso facto result into invalidation of the caste claim. The reasonis that in such case, sub-rule (2) of Rule 12 will apply and the VigilanceCell will have to hold an enquiry including affinity test. Even in such aGcase, affinity test will not be conclusive either way as held in clause (2)of paragraph 20 in Anand’s case[4]. In clause (c) of the same paragraph,the Full Bench of the High Court also holds that even if the applicantpartially satisfies the affinity test, depending upon the nature of theevidence on record, the Scrutiny Committee has power to validate the

claim. Thus, even clause (c) proceeds on the footing that the affinity testis not conclusive.

35. Reading paragraph 40 of the impugned judgment as whole,we cannot conclude that finding has been recorded by the full Benchabout the conclusive nature of the affinity test. The finding cannot beunderstood to mean that reference to the Vigilance Cell and conduct ofaffinity test is mandatory in every case. However, we make it clear that

for the reasons we have recorded in this judgment, we do not approvethe observation in the impugned judgment that “the affinity test is anintegral part of the determination of the correctness of the claim”

CONCLUSIONS

36. Thus, to conclude, we hold that:

(a)Only when the Scrutiny Committee after holding an enquiryis not satisfied with the material produced by the applicant,the case can be referred to Vigilance Cell. While referringthe case to Vigilance Cell, the Scrutiny Committee mustrecord brief reasons for coming to the conclusion that it isnot satisfied with the material produced by the applicant.Only after case is referred to the Vigilance Cell for makingenquiry, an occasion for the conduct of affinity test willarise.

(b)For the reasons which we have recorded, affinity test cannotbe conclusive either way. When an affinity test is conductedby the Vigilance Cell, the result of the test along with allother material on record having probative value will haveto be taken into consideration by the Scrutiny Committeefor deciding the caste validity claim; and

(c)In short, affinity test is not litmus test to decide casteclaim and is not an essential part in the process of thedetermination of correctness of caste or tribe claim inevery case.

37. We direct the Registry to place the appeals/SLPs before theappropriate Bench for deciding the same in the light of the referenceanswered by us.

Ankit Gyan

Reference answered.

(Assisted by : Varun Dhond and Mahendra Yadav, LCRAs)