PRIYA PRAMOD GAJBE versus STATE OF MAHARASHTRA AND OTHERS on 11 July 2023

[2023] 9 S.C.R. 1261 : 2023 INSC 663

PRIYA PRAMOD GAJBE

v.

THE STATE OF MAHARASHTRA AND OTHERS

(Civil Appeal No. 7117 of 2019)

JULY 11, 2023

[B. R. GAVAI AND J. B. PARDIWALA, JJ.]

Education/Educational Institutions – MBBS admission – Seatreserved for Scheduled Tribe – Appellant secured the admissionclaiming that she belonged to ‘Mana’ Scheduled Tribe – Claiminvalidated – Documents of pre-Constitution period relied upon bythe appellant – Probative value of – Held: Documents of the pre-Constitution period showing the caste of the applicant and theirancestors have got the highest probative value – If an applicant isable to produce authentic and genuine documents of the pre-Constitution period showing that he belongs to a tribal community,there is no reason to discard his or her claim as prior to 1950, therewere no reservations provided to the Tribes included in theConstitution (Scheduled Tribes) Order – In the present case,appellant’s great grandfathers birth record shows the caste as‘Mana’ – The said document relates to as early as 10.03.1924, whileanother document of 14.04.1926 shows the caste as ‘Mani’,however, there is no caste named ‘Mani’ – It is possible that therecould be some mistake in writing the caste as the original recordwas written in Marathi and not in English – No reason to discardthe pre-Constitutional document of the period as early as 1924 –Order of the Scrutiny Committee and High Court quashed and setaside – Appellant belongs to ‘Mana’ Scheduled Tribe – Social StatusCertificate.

Social Status Certificate – Scheduled Tribe – Affinity Test –Held: Affinity test may not be regarded as a litmus test forestablishing the link of the applicant with a Scheduled Tribe – Claimby a person belonging to the Scheduled Tribe cannot per se bedisregarded on the ground that his present traits do not match histribe’s peculiar anthropological and ethnological traits etc. –Though the Affinity Test may be used to corroborate the documentary

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Aevidence, it should not be the sole criteria to reject the claim –Education/Educational Institutions.

Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. Stateof Maharashtra and Others 2023 SCC Online SC 326;Anand v. Committee for Scrutiny and Verification ofBTribe Claims and Others (2012) 1 SCC 113 : [2011] 15SCR 386 – relied on.

Ku. Yogita v. State of Maharashtra and Others WritPetition No. 6103 of 2010 decided on 15.09.2016 –referred to.

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Case Law Reference

[2011] 15 SCR 38

relied on

Para 12

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7117 of2019.

DFrom the Judgment and Order dated 22.12.2018 of the High Courtof Judicature at Bombay in WP No.996 of 2018.

Sudhanshu S. Choudhari, Adv. for the Appellant.

Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya AniruddhaPande, Bharat Bagla, Sourav Singh, Gaurav Agrawal, Kunal Cheema,EMohan M Sudame, Akshaya M. Sudame, Mrs. Aditi Deshpande Parkhi,Shivam Dube, Raghav Deshpande, Advs. for the Respondents.

The Judgment of the Court was delivered by

B. R. GAVAI, J.F1. Application for intervention is allowed.

2. This appeal challenges the judgment and order passed by theDivision Bench of the High Court of Bombay dated 22[nd] December2018, thereby dismissing the petition filed by the appellant challengingthe order passed by the Scheduled Tribe Caste Certificate ScrutinyGCommittee, Kokan Division, Thane (for short, ‘the Scrutiny Committee’)dated 12[th] December 2017, thereby invalidating the claim of the appellantthat she belongs to ‘Mana’ Scheduled Tribe.

3. The appellant is a student having secured admission in the firstyear of MBBS Degree Course in Respondent No.4/ College during theHAcademic Year 2016-17 against the seat reserved for Scheduled Tribe.

The appellant claimed that she belongs to ‘Mana’ Scheduled Tribe. Assuch, her case was referred to the Scrutiny Committee. The ScrutinyCommittee by order dated 12[th] December 2017 invalidated the claim ofthe appellant on the following grounds:-

i.The appellant failed to satisfy the Affinity Test conductedduring the vigilance inquiry.

ii.The appellant failed to prove that she originally belongs toan area where the people of Mana Scheduled Tribe reside.

4. We have heard Shri Sudhanshu Choudhari, learned counselappearing for the appellant, Shri Shrirang B. Varma, learned counselappearing for the State of Maharashtra and Shri Kunal Cheema, learnedcounsel appearing for the intervenor.

5. Shri Choudhari, learned counsel for the appellant, relying onthe recent judgment rendered by a three Judges Bench of this Court inthe case of Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. Stateof Maharashtra and Others[1], submits that once the pre-Constitutionaldocuments established that the appellant belongs to ‘Mana’ ScheduledTribe, further reference to the Vigilance Cell itself was not necessary.He further submits that the Affinity Test cannot be applied as a litmustest.

6. Shri Varma, learned counsel appearing for the State ofMaharashtra, on the contrary, submits that the Scrutiny Committee aswell as the High Court have rightly concluded that the appellant hasfailed to establish that she belongs to ‘Mana’ Tribe. He submits thatsome of the documents show that the appellant’s forefathers entries are‘Mani’. He, therefore, submits that in view of the conflicting documents,it was necessary for the appellant to clear the Affinity Test. Relying ona Full Bench judgment of the High Court of Bombay in the case of Ku.Yogita v. State of Maharashtra and Others[2], he submits that thougharea restrictions have been removed in 1976, it will still be necessary fora candidate to establish that the candidate’s family originally belongs toan area for which a particular tribe was notified as a Scheduled Tribe.

7. Shri Cheema, learned counsel appearing for the intervenor(s),supports the arguments advanced by Shri Varma, learned counsel forthe State of Maharashtra.

1 2023 SCC Online SC 326

2 Writ Petition No.6103 of 2010 decided on 15.09.2016

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A8. This Court, in the case of Mah. Adiwasi Thakur JamatSwarakshan Samiti (supra), has observed as under:- “20. It is not possible to exhaustively lay down in which cases theScrutiny Committee must refer the case to Vigilance Cell. One ofthe tests is as laid down in the case of Kumari Madhuri Patil,B(1994) 6 SCC 241. It laws down that the documents of the pre-Constitution period showing the cast of the applicant and theirancestors have got the highest probative value. For example, if anapplicant is able to produce authentic and genuine documents ofthe per-Constitution period showing that he belongs to a tribalcommunity, there is no reason to discard his claim as prior toC1950, there were no reservations provided to the Tribes includedin the ST order. In such a case, a reference to Vigilance Cell isnot warranted at all.”

9. It could thus be seen that this Court has held that documents ofthe pre-Constitution period showing the caste of the applicant and theirDancestors have got the highest probative value. It has also been held thatif an applicant is able to produce authentic and genuine documents ofthe per-Constitution period showing that he belongs to a tribal community,there is no reason to discard his or her claim as prior to 1950, there wereno reservations provided to the Tribes included in the ConstitutionE(Scheduled Tribes) Order.

10. A perusal of the report of the Vigilance Committee itself wouldreveal that the appellant’s great grandfathers birth record show the casteas ‘Mana’. The said document relates to as early as 10[th] March 1924,while another document of 14[th] April 1926 shows as ‘Mani’. However,Fit is pertinent to note, and learned counsel for the parties also agree, thatthere is no caste named ‘Mani’. It is thus possible that there could besome mistake in writing when the caste was written. It is to be notedthat original record is written in Marathi and not in English. As such,such an error is quite possible.

G11. We, therefore, find that there was no reason to discard thepre-Constitutional document of the period as early as 1924.

12. Insofar as Affinity Test is concerned, this Court, in the case ofAnand v. Committee for Scrutiny and Verification of Tribe Claimsand Others[3], has observed thus:H3 (2012) 1 SCC 113

“22. It is manifest from the aforeextracted paragraph that thegenuineness of a 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 a caste claim.Nevertheless, we feel that the following broad parameters couldbe kept in view while dealing with a caste claim:

(i) While dealing with documentary evidence, greater reliancemay be placed on pre-Independence documents because theyfurnish a higher degree of probative value to the declaration ofstatus of a caste, as compared to post-Independence documents.In case the applicant is the first generation ever to attend school,the availability of any documentary evidence becomes difficult,but that ipso facto does not call for the rejection of his claim. Infact, the mere fact that he is the first generation ever to attendschool, some benefit of doubt in favour of the applicant may begiven. Needless to add that in the event of a doubt on the credibilityof a document, its veracity has to be tested on the basis of oralevidence, for which an opportunity has to be afforded to theapplicant;

(ii) While applying the affinity test, which focuses on theethnological connections with the Scheduled Tribe, a cautiousapproach has to be adopted. A few decades ago, when the tribeswere somewhat immune to the cultural development happeningaround them, the affinity test could serve as a determinative factor.

However, with the migrations, modernisation and contact withother communities, these communities tend to develop and adoptnew traits which may not essentially match with the traditionalcharacteristics of the tribe. Hence, the affinity test may not beregarded as a litmus test for establishing the link of the applicantwith a Scheduled Tribe. Nevertheless, the claim by an applicantthat he is a part of a Scheduled Tribe and is entitled to the benefitextended to that tribe, cannot per se be disregarded on the groundthat his present traits do not match his tribe’s peculiaranthropological and ethnological traits, deity, rituals, customs, modeof marriage, death ceremonies, method of burial of dead bodies,etc. Thus, the affinity test may be used to corroborate the

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1266SUPREME COURT REPORTS

[2023] 9 S.C.R.

Adocumentary evidence and should not be the sole criteria to rejecta claim.”

13. This court has held that while applying the Affinity Test whichfocuses on the ethnological connections with the Scheduled Tribe, acautious approach has to be adopted. It has been held that a few decadesBago, when the tribes were somewhat immune to the cultural developmenthappening around them, the affinity test could serve as a determinativefactor. However, with the migrations, modernisation and contact withother communities, these communities tend to develop and adopt newtraits which may not essentially match with the traditional characteristicsof the tribe. Hence, the affinity test may not be regarded as a litmus testCfor establishing the link of the applicant with a Scheduled Tribe. It hasbeen held that the claim by a person belonging to the Scheduled Tribecannot per se be disregarded on the ground that his present traits do notmatch his tribe’s peculiar anthropological and ethnological traits etc. Ithas been held that though the Affinity Test may be used to corroborate Dthe documentary evidence, it should not be the sole criteria to reject theclaim.14. It will further be apposite to refer to the recent judgment ofthis Court in the case of Mah. Adiwasi Thakur Jamat SwarakshanSamiti (supra), wherein this Court observed thus:- “25. Now, we come to the controversy regarding the affinity test.EIn clause (5) of Paragraph 13 of the decision in the case of KumariMadhuri Patil, (1994) 6 SCC 241, it is held that in the case ofScheduled Tribes, the Vigilance Cell will submit a report as regardspeculiar anthropological and ethnological traits, deities, rituals,customs, mode of marriage, death ceremonies, methods of burialFof dead bodies etc. in respect of the particular caste or tribe.Such particulars ascertained by the Vigilance Cell in respect of aparticular Scheduled Tribe are very relevant for the conduct ofthe affinity test. The Vigilance Cell, while conducting an affinitytest, verifies the knowledge of the applicant about deities of thecommunity, customs, rituals, mode of marriage, death ceremoniesGetc. in respect of that particular Scheduled Tribe. By its very nature,such an affinity test can never be conclusive. If the applicant hasstayed in bigger urban areas along with his family for decades orif his family has stayed in such urban areas for decades, theapplicant may not have knowledge of the aforesaid facts. It isHtrue that the Vigilance Cell can also question the parents of the applicant. But in a given case, even the parents may be unawarefor the reason that for several years they have been staying inbigger urban areas. On the other hand, a person may not belongto the particular tribe, but he may have a good knowledge aboutthe aforesaid aspects. Therefore, Shri Shekhar Naphade, thelearned senior counsel, is right when he submitted that the affinitytest cannot be applied as a litmus test. We may again note herethat question of conduct of the affinity test arises only in thosecases where the Scrutiny Committee is not satisfied with thematerial produced by the applicant.”

15. It could thus clearly be seen that this Court has held that if theappellant has stayed in bigger urban areas along with his family for decadesor if his family has stayed in such urban areas for decades, the applicantmay not have knowledge of the aforesaid facts. This Court has, therefore,held that the Affinity Test cannot be applied as a litmus test.

16. Insofar as the contention with regard to area restriction isconcerned, it could be seen that Mana Tribe is found at Entry No.18 inthe Presidential Order with respect to the Scheduled Castes andScheduled Tribes for the State of Maharashtra. It could be seen that inthe said entries, there is no area restriction with regard to any of thetribes mentioned therein. Per contra, in some of the entries, restriction isimposed with regard to certain districts. As such, the findings of theHigh Court with regard to area restrictions also, in our view, is notsustainable in law. We find that the order of the Scrutiny Committee aswell as of the High Court need to be interfered with and quashed and setaside on this short ground alone.

17. In the result, the appeal is allowed. The order dated 12[th]December 2017 passed by the Scrutiny Committee and the order dated22[nd] December 2018 passed by the High Court of Bombay are quashedand set aside. It is held and declared that the appellant belongs to ‘Mana’Scheduled Tribe.

18. Needless to state that the validity certificate shall be issued bythe Committee within a period of one month from today.

Pending application(s), if any, shall stand disposed of.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

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