Shilpa Vishnu Thakur Vs State of Maharashtra and Others

D.Y. Chandrachud, J.

THE CONTOURS OF THE CASE

1. The questions that arise before the Full Bench for determination relate to the standards which have to be applied in determining whether or not

an applicant belongs to a designated Scheduled Tribe. Article 342 of the Constitution empowers the President to specify caste, races or tribes or

parts or groups within them which shall be deemed to be Scheduled Tribes in relation to a State or a Union Territory. The power to include in or to

exclude from the lists of Scheduled Tribes specified in a notification issued by the President is vested in Parliament. Pursuant to Article 342, the

Scheduled Tribes were notified by the Constitution (Scheduled Tribes) Order, 1950. This was followed by the Scheduled Castes and Scheduled

Tribes Order (Amendment) Act, 1956. In 1976 Parliament enacted the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.

Part IX of the Third Schedule to the Amending Act specifies Scheduled Tribes for the State of Maharashtra. Among the Scheduled Tribes which

have been specified are:

(1) Mahadev Koli, Malhar Koli, Tokre Koli (Entries 28, 29 and 30);

(2) Dhanwar (Entry No. 14)

(3) Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar (Entry 44)

(4) Mana (Entry 18)

(5) Mannervarlu (Entry 27)

(6) Halba, Halbi (Entry 19).

Attempts were made over a period of time by certain persons belonging to nontribal communities to claim tribal status, on the assertion that their

community is synonymous with a tribal group which is specified in the notification, or that their tribe is subsumed in a tribe which is specifically

notified. The nomenclatures of the communities of such applicants were similar to those of designated Scheduled Tribes, often with a tribal prefix or

suffix. For instance, nontribal communities include Koli (Son Koli, Suryawanshi Koli, Vaiti Koli), Dhangar, Munnurwar/Mannerwar/ Mannawar

and Koshti/Halba Koshti. Decisions of the Supreme Court laid down that the entries contained in the Scheduled Caste or the Scheduled Tribes

Order have to be taken as they stand and no evidence can be led either to interpret or to explain those entries. A tribe which is not specifically

named as a Scheduled Tribe cannot lay claim to inclusion, either on the basis of a similarity of nomenclature or by contending that the tribe in

question is subsumed within a designated Scheduled Tribe.

2. In the State of Maharashtra the State Legislature enacted the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta

Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate

Act, 2000. The Act has now made statutory provisions for the verification and scrutiny of caste claims by competent authorities and subsequently

by Caste Scrutiny Committees. The Act creates offences; provides for disqualifications and for the withdrawal of benefits granted on the basis of

false caste certificates.

3. In Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, the Supreme Court laid down the procedure

for the verification and scrutiny of caste and tribe claims. The procedure has now been codified into legislation in the State of Maharashtra.

Madhuri Patil''s case, while elaborating on the basis of scrutiny, accepted the relevance and importance of the affinity test. By the affinity test, the

Scrutiny Committees would be entitled to verify the genuineness of the claim of an applicant on the basis of ethnicity and anthropology. The

expression ""affinity"" is used to denote the association of the applicant with a Scheduled Tribe into which he or she has been born by the application

of certain settled standards.

4. The reference to the Full Bench has been occasioned as a result of a conflict in the views expressed in Judgments of this Court on the

applicability of the affinity test. The points which have been referred by the Division Bench for determination of the Full Bench ( and as

reformulated) are as follows:

(i) Should the paramount consideration in determining the caste claim of a person be documentary evidence or, as the Supreme Court held,

anthropological moorings and ethnological kinship""; and is the ""crucial affinity test"" relevant and germane for such a decision?

(ii)(a) In cases where the documents produced by a person claiming to be belonging to a particular caste satisfy the requirement, for example, in

the case of ""Thakur"", if all the documents produced/filed and relied upon by a candidate denote his caste as ""Thakur"" then, without validating the

caste claim with reference to the ""crucial affinity test"", should the caste claim be validated or not?

(b) In a case where a person is not in possession of any document to meet the requirements of a particular caste claim can the claim be scrutinized

on the basis of the ""crucial affinity test"", and a validity certificate be issued?

(c) Where a person who claims to belong to a particular caste has some documents in his favour and/or partially satisfies the crucial affinity test,

can the claim be certified and is the candidate entitled to his caste certificate being validated?

SUBMISSIONS OF THE PETITIONERS

On behalf of the petitioners it was submitted that firstly the provisions of the Scheduled Tribes Order issued under Article 342 have to be applied

as they stand and no enquiry can be held or evidence let in to determine whether or not some particular community falls within or outside it.

Reliance is placed on the judgments of the Supreme Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi and Another Vs. State of

Kerala and Another, State of Maharashtra v. Milind and Ors. (2001)1 SCC 4 and State of Maharashtra and Others Vs. Mana Adim Jamat

Mandal, . It has been submitted that since ""Thakur, Thakar"" is a Scheduled Tribe under Entry 44 of the Second Schedule to the Amending Act of

1976, all Thakurs are entitled to the benefits due to the Scheduled Tribe of Thakur Thakar. It has been submitted that under the Scheduled Tribe

Order of 1950; the area restrictions held the field but after the Amending Act of 1976, Parliament removed such restrictions. In the circumstances,

it has been submitted that the application of the affinity test would not be permissible in law, Parliament having determined that for the State of

Maharashtra, all Thakurs would be deemed to be Scheduled Tribes. The Entry in the Amending Act of 1976 must be construed as it stands.

Secondly, it has been submitted that under the Legislation enacted by the State of Maharashtra, rules have been notified by the Tribal Development

Department in 2003 which require that documentary evidence be considered. Reliance is placed upon the provisions of Sub-rule (2) of Rule 12 to

urge that it is only when the Scrutiny Committee is not satisfied with the documentary evidence that the application can be forwarded to the

Vigilance Cell for conducting a school, home or other enquiry. Where the documentary evidence is of the preconstitution period and has not been

doubted, it is not open to the Scrutiny Committee to refer the matter to the Vigilance Cell. Moreover, once the documentary evidence is genuine,

the caste claim will have to be decided on the basis of such documentary evidence and oral evidence cannot prevail over it. The affinity test cannot

be the sole deciding factor when there is no material before the Committee showing what are the peculiar tribal claims and characteristics. If the

documents are of a preconstitution period or before the recognition of a particular tribe as a Scheduled Tribe such claims cannot be invalidated

only on the ground that the affinity test is not satisfied. Where the documentary evidence relates to the period after the presidential order and the

claim has partially been proved factually, the claim has to be validated. If there is no documentary evidence and affinity is also not proved, no

straight jacket formula can be applied either to reject or validate the tribe claim and what is required to be seen is the totality of the circumstances.

THE PROBLEM OF FRAUDULENT CLAIMS:

5. Two important facets are involved in the process of verification of claims to belong to a Scheduled Caste, Scheduled Tribe, or the Other

Backward Classes. First, persons who are genuinely entitled to the benefit of reservations under Articles 15 and 16 of the Constitution have a

legitimate entitlement that the process for the certification of their claims and the verification of their status be fair and efficient. Fairness of the

process ensures that genuine applicants are able to obtain certification and to seek verification in a manner consistent with the application of

objective principles. An efficient process is one that does not result in harassment to the applicant and ensures that a caste claim, where it is to be

allowed, is adjudicated upon with reasonable dispatch. The fairness of the process is a vital element because applicants ought not to be subjected

to procedures which are cumbersome, tardy and a source of harassment. The second important facet is the need to ensure that the benefit of

reservations is granted only to those who genuinely belong to the castes, tribes or classes for whom reservation is intended. Allowing the benefit of

reservation to persons who do not belong to a caste or tribe for which a reservation has been set apart is destructive of the Constitutional value in

protecting those for whom reservations are intended. Allowing the benefit of a reserved seat - be it in education, employment or legislative bodies -

to an impostor is a fraud on the Constitution. An impostor who wrongfully obtains the benefit of reservation operates to the prejudice of both the

reserved communities as well as the general community. A person who wrongfully obtains a benefit to which he or she is not entitled deprives a

genuine member of the caste or tribe for whom reservations are made. Such a person also steals a march over law abiding members of the general

community who do not assert false claims to further their prospects in education and employment. Hence, there is a strong element of public policy

in ensuring that the policy of reservations which has been so carefully crafted by the founding fathers of the Constitution is not defeated by allowing

persons who do not genuinely belong to the reserved communities to seek the benefits of reservation.

6. In Madhuri Patil v. Additional Commissioner, Tribal Development (supra), the Supreme Court emphasized the serious problem which had

confronted the State by unscrupulous attempts to claim the benefit of reservation by persons who were not entitled. The Supreme Court termed it

as a claim to a ""pseudo status"":

It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by

providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by

unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in

fact disentitled to such status. The case in hand is a clear instance of such pseudostatus.

The Supreme Court emphasized the need to ensure that the benefit of reservation is made available only to genuine persons who belong to the

caste or tribe notified. The Court noted that dilatory tactics are resorted to by persons with spurious claims with a view to creating hurdles in the

completion of inquiries by the Scrutiny Committee:

The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving

the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the

Constitution. The genuine candidates are also denied admission to educational institutions or appointments to the office or posts under a State for

want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in

completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by

a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status

certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude.

AFFINITY TEST

7. The question as to whether sociological and anthropological traits are relevant in the determination of whether an applicant belongs to a

Scheduled Caste or Tribe has been dealt with in the Judgment of the Supreme Court in Madhuri Patil. The Supreme Court held that sociology,

anthropology and ethnology are valid elements that would go into the determination as to whether a particular applicant in fact belongs to a

Scheduled Tribe. One of the arguments which was pressed in aid was that social mobility and the process of modernisation obviate the need to

fulfill the affinity test. This, held the Supreme Court, was only a ""convenient plea to get over the crux of the question"" (para 5, page 248). The

Supreme Court held thus:

Despite the cultural advancement, the genetic traits pass on from generation to generation and no one could escape or forget or get them over. The

tribal customs are peculiar to each tribe or tribal communities and are still being maintained and preserved. Their cultural advancement to some

extent may have modernised and progressed but they would not be oblivious to or ignorant of their customary and cultural past to establish their

affinity to the membership of a particular tribe.

8. Several passages in the Judgment in Madhuri Patil''s case emphasize that kinship and affinity to a tribe are vital in determining as to whether an

applicant truly belongs to a tribe which has been designated as a Scheduled Tribe. This is evident from the following observations of the Supreme

Court:

The anthropological moorings and ethnological kinship affinity gets genetically ingrained in the blood and no one would shake off from past, in

particular, when one is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognised by

the Constitution for their upliftment in the society. The ingrained tribal traits peculiar to each tribe and anthropological features all the more become

relevant when the social status is in acute controversy and needs a decision. The correct projectives furnished in pro forma and the material would

lend credence and give an assurance to properly consider the claims of the social status and the officer or authority concerned would get an

opportunity to test the claim for social status of particular caste or tribe or tribal community or group or part of such caste, tribe or tribal

community. It or he would reach a satisfactory conclusion on the claimed social status. The father of the appellant has failed to satisfy the crucial

affinity test which is relevant and germane one.

The Supreme Court was of the view that the Scrutiny Committee was justified in considering the entire material together with sociological,

anthropological and ethnological perspectives:

The finding recorded by the Committee is based on consideration of the entire material together with sociological, anthropological and ethnological

perspectives which Mahadeo Kolis enjoy and of the OBC castes and subcaste of the Kolis. The Additional Commissioner as well, has minutely

gone into all the material details and found that when a section of the society have started asserting themselves as tribes and try to earn the

concession and facilities reserved for the Scheduled Tribes, the tricks are common and that, therefore, must be judged on legal and ethnological

basis. Spurious tribes have become a threat to the genuine tribals and the present case is a typical example of reservation of benefits given to the

genuine claimants being snatched away by spurious tribes.... In Subhash Ganpatrao Kabade case, the approach of the Division Bench of the High

Court appears to be legalistic in the traditional mould totally oblivious of the anthropological and ethnological perspectives

9. The Supreme Court issued directions in Madhuri Patil''s case, laying down the procedure that must be followed for the issuance of caste

certificates for their scrutiny and approval. The procedure involves the filing of an affidavit by the parents, guardian or the candidate, as the case

may be, furnishing particulars of the caste and subcaste, tribe, tribal community or part thereof, of the place from which the candidate originally

hails and other particulars as may be prescribed by the Directorate. The Supreme Court directed the constitution of a committee manned by

experts and directed that the Research Officer must have an intimate knowledge in identifying tribes and tribal communities. The directions of the

Supreme Court provide for the constitution of a Vigilance Cell. The vigilance inquiry entails a visit by the Inspector of Police attached to the Cell to

the original place from which the candidate hails for the collection of all relevant data. The nature of the inquiry is made clear from the following

directions of the Supreme Court:

The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the

case may be. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have

knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro

forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of

marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.

These directions clearly establish that the nature of the inquiry in regard to the claim of a candidate to belong to a Scheduled Tribe is not merely to

be confined to an examination of the birth and the school records and of documentary evidence but would involve an investigation of the affinity of

the candidate with a tribe, or as the case may be, tribal community. Thus, the process of verification of caste claims which came to be governed by

the Judgment of the Supreme Court in Madhuri Patil involved an inquiry not merely into the documentary materials on the basis of which the caste

claim is founded but equally a verification of the claim with reference to the affinity of the candidate with a designated Scheduled Tribe. The inquiry

would comprehend within its purview anthropological and ethnological traits. The Committee would be entitled to inquire into the question as to

whether the applicant has established an affinity with the tribe. The yardstick for determining such affinity includes the rituals of the tribe and its

customs, worship, ceremonies associated with birth, marriage and death and the conventions followed for the disposal of dead bodies.

10. Right through the ages, in the evolution of the human race, birth, marriage and death have been considered to be milestones around which

customs and rituals of communities have grown. Worship is an integral aspect of the life of a community and tribal communities are identifiable with

reference to specific modes of worship. The affinity test which comprehends all these aspects is, therefore, not extraneous to the process of

identifying whether the applicant is a genuine member of a tribe or is an impostor fraudulently claiming the benefits of a reservation to which he is

not entitled.

THE STATE LEGISLATION:

11. The Legislature in the State of Maharashtra enacted the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis),

Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act,

2000. The Act having received the assent of the President, was published in the Gazette on 23rd May, 2001. The Act has been enacted with a

view to regulate the issuance and verification of caste certificates for the reserved communities. Section 3 of the Act provides that any person

belonging to a Scheduled Caste, Scheduled Tribe, Denotified Tribe, Nomadic Tribe, Other Backward Class or Special Backward Category who

is required to produce a caste certificate in order to claim the benefit of reservation in public employment, for admission to an educational institution

under any special provisions made under Article 15(4) of the Constitution, for contesting an elective post in any local authority or Cooperative

Societies, for the purchase of land from a tribal land holder or for any other purposes specified by the Government, must apply in such form and

manner as may be prescribed, to the Competent Authority for the issuance of a caste certificate. Section 4 provides that the Competent Authority

may, on an application made to it u/s 3 and after satisfying itself about the genuineness of the claim and following the procedure as prescribed, issue

a caste certificate or reject it for reasons to be recorded in writing. A caste certificate issued under subsection (1) of Section 4 is valid only subject

to the verification and grant of a validity certificate by the Scrutiny Committee. Section 5 provides for an appeal against the rejection of an

application under subsection (1) of Section 4.

12. Section 6 provides for the verification of caste certificates by the Scrutiny Committee. Under subsection (1) of Section 6 the State Government

has to constitute one or more Scrutiny Committees for the verification of caste certificates, specifying the functions and the area of jurisdiction of

each of such Committees. Under subsection (2) of Section 6, after obtaining a caste certificate from the Competent Authority, a person desirous of

availing of the benefits or concession of reservations, has to make an application to the Scrutiny Committee for the verification of the caste

certificate and for the issuance of a validity certificate. The Scrutiny Committee is required to follow the procedure which is prescribed for the

verification of a caste certificate. u/s 7, the Scrutiny Committee is entitled suo motu or otherwise to enquire into the correctness of the certificate

issued, whether before or after the commencement of the Act, and if it is of the opinion that it was obtained fraudulently, cancel and claimant

applicant . confiscate the certificate.

13. The Act has by Section 8 provided that the burden of proof that a person belongs to a caste, tribe or class, on an application u/s 3 and in an

inquiry conducted by the Competent Authority, the Scrutiny Committee or the Appellate Authority, shall be on the claimantapplicant. Section 10 of

the Act provides that benefits which are secured on the basis of a false caste certificate shall be withdrawn. Subsections (1) to (4) of Section 10

are material and they provide as follows:

10. Benefits secured on the basis of false Caste Certificate to be withdrawn.

(1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes,

Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Castes,

Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or Corporation, owned or controlled

by the Government or in any Government aided institution or Cooperative Society against a post reserved for such Castes, Tribes or Classes by

producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the

concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived

by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.

(2) Any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit shall

be recovered from such person as an arrears of land revenue.

(3) Notwithstanding anything contained in any Act for the time being in force, any Degree, Diploma or any other educational qualification acquired

by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false

shall also stand cancelled, on cancellation of such Caste Certificate, by the Scrutiny Committee.

(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory

body if he has contested the election for local authority, Cooperative Society or any statutory body on the seat reserved for any of Scheduled

Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by

procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny

Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be

deemed to have been terminated retrospectively.

14. Section 11 of the Act provides for offences and penalties for obtaining a false caste certificate by furnishing false information or filing a false

statement or document or by any other fraudulent means. An offence is also created where a person not belonging to one of the reserved

communities secures the benefit of an appointment in Government, a local authority or a company owned or controlled by the Government or

secures an admission to an educational institution against a seat reserved for such communities or is elected to an elective office in a local authority

or a Cooperative Society on the strength of a false certificate.

OBJECTS AND REASONS

15. The Statement of Objects and Reasons annexed to the Bill which was introduced in the State Legislature clearly brings out that the Legislature

was seized with the menace, which had reached alarming proportions, of persons seeking benefits of reservation in employment, education and to

elective offices on the basis of false caste certificates. The Act was intended to remedy the problem. The evil which the State Legislature sought to

remedy finds elaboration in the Statement of Objects and Reasons thus:

It has been brought to the notice of the Government that the incidents of procuring false Caste Certificates, in respect of Scheduled Castes,

Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category have reached

alarming figure. Such false Caste Certificates not only enable the ineligible persons to avail of the concessions and reservations in the matter of

securing employment or admission in the educational institutions or contesting for or being elected to any of the elective offices reserved for the

benefit of the aforesaid Castes, Tribes and Classes, but also result in depriving the genuine members of the said Castes, Tribes and Classes of the

said concessions and reservations, thereby defeating the very purpose of such concessions and reservations.

2. The Hon''ble Supreme Court in its judgment dated 18th April 1995, in the case of Director of tribal Welfare, Government of Andhra Pradesh v.

Laveti Giri and Anr. has also desired that ""the Government of India should have the matter examined in greater detail and bring about a uniform

legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and corner the benefits

reserved for the real tribals, etc. so that the menace of fabricating the false records and to gain unconstitutional advantage by plain/spurious persons

could be prevented.

3. As the existing instructions issued by Government, from time to time, are found to be inadequate, to curb this menace, it has been decided to

undertake a suitable legislation for regulating the issue of the Caste Certificate and verification of such certificate and also providing for deterrent

punishment for those who indulge in such illegal activity.

THE RULES

16. In exercise of the rule making power conferred by Section 18 of the Act, the Government in the Tribal Development Department made the

Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003. Rule 3 provides that a person who claims to

belong to a Scheduled Tribe and desires to have a Scheduled Tribe certificate must submit an application in FormA appended to the Rules

together with an affidavit in Form A1. Subrule (2) of Rule 3 is as follows:

(2) The applicant shall file with the application an affidavit in Form A1 duly sworn before the authorised Officer or Court, mentioning,

( a) particulars of the Scheduled Tribe, tribal community, part or group of tribe , which he claims to belong to;

(b) religion;

(c) the place from which he originally hails;

(d) whether he had applied for grant of Scheduled Tribe Certificate in the State of Maharashtra or in any other State;

(e) whether any Scheduled Tribe Certificate was issued or refused to any of his near relatives in the State of Maharashtra or in any other State;

Apart from the affidavit under Sub-rule (3) of Rule 3, the applicant is required to furnish copies of various documents, namely (i) Extracts from the

Birth Register of the applicant, his father or `elderly relatives'' from the paternal side; (ii) Extract from the Primary School Admission Register of the

applicant, his father or grandfather, if available; and (iii) Primary School Leaving Certificate of the applicant and his father. The applicant has also to

submit documentary evidence in regard to the Scheduled Tribe and the ordinary place of residence prior to the date of notification of such

Scheduled Tribe; an extract from the service record of the father or blood relatives who are in Government or any other services; the validity

certificate, if any, issued to the father or to a relative on the paternal side; the revenue record or the village panchayat and other relevant

documentary evidence. FormA contains a detailed proforma in which the applicant is required to disclose relevant information. The information of

which disclosure is sought is intended to facilitate the process of verification of the claim of the applicant to belong to a designated Scheduled

Tribe. Such information includes the present occupation, the hereditary occupation, name of the Scheduled Tribe and of the SubTribe, mother

tongue and the dialect spoken by the candidate. The information that is sought includes the names of the deities and Gods/Goddesses of the

Scheduled Tribe and in the case of conversion to another religion, the names of the deities worshiped prior to conversion.

17. The information which is required to be disclosed under the Rules, by an applicant for the grant of a caste certificate consists both of the

documentary evidence pertaining to the candidate, his ancestors and relatives on the one hand and information which would have a bearing on the

affinity of the candidate to a Scheduled Tribe. The Competent Authority has to follow the procedure which is prescribed by Rule 4 in either

granting or rejecting an application for a Scheduled Tribe Certificate. Jurisdiction is conferred upon a Competent Authority in whose territorial

jurisdiction the applicant himself or whose father/grandfather ordinarily resided on the date of the notification of the Presidential Order scheduling

that particular tribe.

18. Upon receipt of the application, the Competent Authority has to ensure that complete information in all respects has been furnished by the

candidate. The Competent Authority has to scrutinise the claim of the applicant and to satisfy itself about the genuineness of the claim. If the

Competent Authority is satisfied about the correctness of the information, documents and evidence furnished, it shall issue a Scheduled Tribe

Certificate in FormC. If the Competent Authority is not satisfied with the claim of the applicant on scrutiny of the evidence produced, it may, after

recording reasons, order a further inquiry as it deems fit. Sub-rule (12) of Rule 4 provides that after considering the evidence produced by the

applicant or any other person on his behalf, and the statement of the applicant and after taking into account the material gathered by the Competent

Authority, if it is satisfied about the genuineness of the claim, it shall grant a certificate to the applicant. In the event that the Authority is not so

satisfied, it may reject the application after recording reasons. Provisions for an appeal against the decision of the Competent Authority are made in

Rule 8.

19. The next stage is the verification of caste certificates by the Scrutiny Committee. The Rules provide for the meetings and the quorum of

Scrutiny Committee in Rule 9 and for the constitution of a Vigilance Cell in Rule 10. Under Rule 10, the Vigilance Cell is to consist of a Senior

Deputy Superintendent of Police, a Police Inspector, Police Constables and a Research Officer. The process of verification of a caste certificate is

provided for in Rule 11. The applicant for that purpose has to submit documentary material both in respect of himself and in respect of his father.

These documents include an extract from the Birth Register, from the School Admission Register and the Primary School Leaving Certificate.

Other documents including revenue records and affidavits of near relatives whose validity certificates have been submitted have to be filed. Under

Rule 12, the Scrutiny Committee has to scrutinise the application, verify the information and the documents furnished by the applicant and

acknowledge the receipt of the application. Under Sub-rule (2) of Rule 12, if the Scrutiny Committee is not satisfied with the documentary

evidence produced by the applicant, it has to forward the application to the Vigilance Cell for conducting the school, home and other inquiry. Sub-

rule (3) requires the Vigilance Officer to visit the place of residence and the original place from which the applicant hails and usually resides.

Subrules (4), (5) and (6) of Rule 12 provide that:

(4) The Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or the

guardian, as the case may be.

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

(6) After completion of the enquiry, the Vigilance Cell shall submit its report to the Scrutiny Committee who will in turn scrutinise the report

submitted by the Vigilance Cell.

If the report of the Vigilance Cell is in favour of the applicant and if the Scrutiny Committee is satisfied about the claim of the applicant, it may issue

a validity certificate in FormG. If the Scrutiny Committee on the basis of the report of the Vigilance Cell and other documents available is not

satisfied about the claim of the applicant, it has to issue a notice to show cause and after receipt of a representation and a personal hearing, either

issue a validity certificate or pass an order for the cancellation and confiscation of the caste certificate.

20. Form E to the Rules elaborates upon the details which are required to be submitted by a candidate to the Scrutiny Committee when an

application is made for the issuance of a validity ceritificate. The information on which a disclosure is sought includes the occupation of the

applicant''s father, the traditional occupation of the family, tribe or subtribe of which membership is claimed and the mother tongue and dialect of

the candidate. A disclosure has to be made of the names of the Gods/Goddesses worshiped by the applicant and five surnames of the

relatives/community of the applicant. A disclosure has to be made of the place of residence and of the documents on the basis of which the caste

certificate was obtained. Information is required of the details of the primary, secondary and college education of the candidate and his father and

of members of the family who have been educated. Relevant documentary evidence has to be enclosed in regard to school admission, primary

school leaving certificates and extracts from the Birth and Death Registers.

THE NATURE OF THE ENQUIRY

21. The provisions of the Act and the Rules establish that the Legislature and the State Government as the rule making authority contemplated a

broad based inquiry into all relevant facets of the claim of an applicant to belong to a Scheduled Tribe. The inquiry is essentially in two stages: the

first, when a caste certificate is issued to a candidate and the second when a caste certificate is to be verified. In the first stage, an application for

the issuance of a caste certificate has to be accompanied by a disclosure not merely of documentary evidence but additional information which

would have a bearing on the kinship and affinity of the applicant to the Scheduled Tribe. The Competent Authority, before it issues a caste

certificate, has to satisfy itself about the genuineness of the claim. Even at the stage of the issuance of a caste certificate, the Competent Authority

has to verify the documents with the originals and it is only upon its satisfaction about the correctness of the information, documents and the

evidence furnished by the applicant that a tribe certificate is issued. If the Competent Authority is not satisfied with the claim of the applicant on a

scrutiny of the evidence produced, it is empowered to order a further inquiry. Thereupon, it is after considering the evidence produced by the

applicant, the statement of the applicant and after taking into account the material gathered by the Competent Authority that it is empowered to

either grant a certificate or to reject the application. The condition precedent to the grant of a caste certificate is the satisfaction of the Competent

Authority about the genuineness of the claim made by the applicant. Just as the disclosure by the candidate is not confined to documentary material

alone, the satisfaction of the Competent Authority equally is as regards the genuineness of the claim. The genuineness of the claim has to be verified

on the basis of the entire material including information, documents and evidence. An inquiry into kinship and the affinity of the applicant is not alien

to the scheme of the Act and the Rules. On the contrary, application of the affinity test is an integral part of the process. The process of issuing a

caste certificate by the Competent Authority is not ministerial or formal. Satisfaction of the genuineness of the claim can be arrived at only through

an objective enquiry. The enquiry before the Competent Authority is not confined only to an examination of documents. The Competent Authority

is under a mandate to consider the information, documents and evidence. Similarly, the mandate of disclosure by the applicant is not confined only

to a disclosure of documents. The process before the Competent Authority is hence an important first stage in determining the genuineness of the

claim. The statutory provisions and the provisions made by the rule making authority clearly emphasize that the affinity test is not extraneous or ultra

vires.

22. When the second stage of an application for the issuance of a validity certificate arises, the applicant has to make an application well in

advance to the Scrutiny Committee. FormE for the disclosure of information again emphasises that a disclosure is sought not merely in regard to

documentary evidence but in respect of all aspects that would have a bearing on the claim of the applicant to belong to a Scheduled Tribe. A

disclosure is sought in respect of the applicant, his father and of all the members of his family. The applicant has to submit the name of the tribe or

part or group of the tribe to which he or she claims to belong to, his or her mother tongue, dialect, the deities worshiped and the surnames of those

belonging to the community or of the applicant''s own relatives. The reason for the disclosure of such information is plain and obvious. The

information is intended to provide material on the basis of which the claim of the applicant can be verified. The condition precedent to the grant of a

validity certificate by the Scrutiny Committee is its satisfaction about the claim of the Applicant. Satisfaction postulates an enquiry applying

objective standards for adjudication. The enquiry cannot be confined to a scrutiny of documentary evidence alone. Such an artificial reading down

of the provisions will defeat the object of the Act. The constitution of a Vigilance Cell, the association of experts and the ambit of the Vigilance

Report are all directed towards determining whether the Applicant in fact belongs to a Scheduled Tribe. An attempt was made to urge that

ordinarily, the enquiry has to be confined to documentary evidence and Rule 12(2) contemplates a reference to the Vigilance Cell where the

Committee is not satisfied about the documentary evidence. The Rules have to be harmoniously construed as a whole. The enquiry before the

Scrutiny Committee for verification of a caste certificate is preceded by the process which takes place before the Competent Authority for the

grant of a caste certificate. The Scrutiny Committee must have due regard to the entire record which consists of documents, information and

evidence. A wholesome power is conferred on the Scrutiny Committee to order a vigilance enquiry. The truth of the claim has to be verified. In

ascertaining the veracity of the claim, nothing can be shielded away from the Scrutiny Committee, nothing suppressed. The realities of public life are

startling. Judicial notice has to be taken of them. Documents are sometimes fabricated to buttress false claims. Sometimes they may be misleading.

Demonstrating that a candidate belongs to a tribe is much more complex than merely finding out whether the family surname overlaps with the

name of a designated tribe. To hold otherwise would be to blink at reality. Worse still, it will result in the dissipation of benefits from the real tribals

and to the fraudulent acquisition of benefits by `pscudo tribals''.

23. The provisions of the Statute and of the Rules have to be understood and interpreted in the context of the stated object that underlies the

enactment of Maharashtra Act 23 of 2001. The State Legislature expressly took notice of the fact that incidents involving procuring of false caste

certificates had reached an alarming figure. This had the effect of not merely enabling ineligible persons to avail of the concessions of reservations

made available to reserved communities in employment, education and to elected offices but also deprived genuine persons belonging to these

communities of the concessions made, thereby defeating the purpose of reservations. As the existing instructions which had been issued by the

Government were found to be inadequate to curb the menace, the Legislature thought it fit to enact suitable legislation to provide for the issuance

and verification of caste certificates and for imposing deterrent punishment on those who are found to engage in illegal activities. It is in that context

that the burden of proof has been imposed by the Legislature on the applicant who applies for a caste certificate or caste validity certificate, as the

case may be. The Legislature has provided for the withdrawal of all benefits granted on the basis of a false caste certificate including the

cancellation of admissions granted or even a degree, diploma or educational qualification obtained on the basis of such certificate. A person who

has been employed on the basis of a false caste certificate is liable to be discharged. Where election to an elected office of a local authority,

Cooperative Society or a statutory body has been obtained on the basis of a false caste certificate, a disqualification is provided for. Offences and

penalties have been provided for in Section 11.

24. As a matter of first principle, it would be impermissible for the Court to stultify the scope of the inquiry that is contemplated for the issuance of

a caste certificate in the first instance and a caste validity certificate thereafter. The object of the legislation is to ensure that only genuine persons

obtain the benefit of reservations and that false and fraudulent claims are excluded. To confine an inquiry only to the verification of documentary

material would defeat the very object and purpose of the inquiry. Judicial notice can be taken of the fact that documents can lie. Merely because a

person produces a document reflecting his own surname as that of a community for which reservation has been made may not necessarily establish

that the person belongs to that designated tribe. It is in that context that the process of verification has to be broad based .

25. Ever since the Judgment in Madhuri Patil''s case, an inquiry into kinship and affinity was held to be permissible. The State Legislature while

enacting the legislation has taken due note of the law laid down by the Supreme Court in Madhuri Patil and gave legislative form to the directions

that were issued by the Supreme Court. In significant areas such as withdrawing the benefits obtained on the basis of a false caste certificate and

creating offences and penalties, the Legislature has in its robust wisdom given teeth to the legislation. Imposition of deterrent penalties is intended to

ward off fraudulent attempts. Experience shows that persons who come forth with fraudulent claims obtain employment or, as the case may be,

educational qualifications on the strength of false caste certificates. Once employed or admitted to an educational programme, candidates adopt all

kinds of dilatory tactics to prolong the inquiry and set up a plea of equity even if it was ultimately found that the claim to belong to a Scheduled

Caste or Scheduled Tribe was false. The Legislature has now stepped in by enacting deterrent legislation that does not brook sympathy for acts of

dishonesty. In this legislative background, and particularly having regard to the rules which give effect to the provisions of the Act, it is impossible

to hold that the application of the affinity test is alien to the purposes of the State legislation. On the contrary, we are of the view that both the

Competent Authority while issuing a caste certificate and the Scrutiny Committee while issuing a caste validity certificate are duty bound to

investigate into all aspects of a claim to belong to a reserved community by appreciating documentary material information and evidence which

encompasses an enquiry into whether a candidate has established affinity with a scheduled tribe.

THE SCHEDULED TRIBE ORDERS

26. On behalf of the petitioners, the principal submission that has been urged is that the Presidential Order designating certain tribes as Scheduled

Tribes is conclusive as to the entries contained therein. No evidence can be admitted by any Court for the purpose of inferring that a tribe which

has not been specifically designated is a part of a designated tribe. Conversely, once the name of a tribe finds place in any of the entries in the

Presidential Order, it would not be open to the Court to hold that a community, though named in the Presidential Order, does not fall within an

entry specified therein. The submission is that by the application of the affinity test what has been done is to deny the benefit of the status of a

Scheduled Tribe to a group or community whose name finds mention in the Presidential Order. This, it has been submitted, is impermissible since

such an exercise is not open either to the Government or to the Court and the only recourse that is permissible is an amendment to the entries

contained in the Presidential Order.

27 There is a fundamental conceptual error in the submission which has been urged on behalf of the petitioners in support of their objections to the

application of the affinity test. Conceptually it is necessary to keep two different issues distinct. The first issue is as regards the entries that are

contained in the Presidential Order designating certain tribes or parts thereof as Scheduled Tribes. A Constitution Bench of the Supreme Court has

held in Palghat Jilla Thandan Samudhaya Samrakshna Samithi and Anr. v. State of Kerala and Anr. (supra) that the Presidential Order ""has to be

applied as it stands and no inquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it.

(para 18, page 365). The Court cannot assume the jurisdiction to hold an enquiry or let in evidence to determine whether the terms of the

Presidential Order include a particular community though not specifically named. In Palghat Jilla Thandan the Supreme Court held that the Thandan

community is designated as a Scheduled Caste in the entire State of Kerala and it was, therefore, not permissible for the State Government to

direct, by means of a Government Resolution, that a section of the Ezhava/Thiyya community, which is called Thandan, would not be included

within the terms of the Presidential Order.

28. In State of Maharashtra v. Milind Katware and Ors. (supra), the same principle was reiterated by a Constitution Bench, this time in the context

of the Presidential Order relating to Scheduled Tribes. Entry 19 of Part 9 of the schedule to the Amended Act of 1976 lists Halba, Halbi as

Scheduled Tribes. A Division Bench of this Court had held that HalbaKosti would also be included in Entry 19. The Constitution Bench of the

Supreme Court set aside the judgment of this Court and held that it was impermissible to hold that a community though not listed specifically as a

Scheduled Tribe was part of a tribe which has been separately listed. The Supreme Court held that in order to gain the advantage of reservations

for the purpose of Articles 15(4) or 16(4), several persons have been coming forward claiming to be covered by Presidential orders issued under

Articles 341 and 342. The power to do so vested exclusively in Parliament. The Supreme Court held that it is not permissible to hold any inquiry

or let in any evidence to decide or declare that any tribe or tribal community or part thereof is included in the general name even though it is not

specifically mentioned in the entries concerned in the Constitution (Scheduled Tribes) Order, 1950. The Supreme Court held that the Scheduled

Tribes Order must be read as it is and it is not permissible to say that a tribe, subtribe or a part of or group of any tribe or tribal community is

synonymous to the one mentioned in the Scheduled Tribes Order, if it is not specifically mentioned. A notification issued under Clause (1) of

Article 342, specifying Scheduled Tribes, can be amended only by a law made by Parliament. The power to include or exclude tribes or tribal

communities in or from the Order vests only in Parliament. Neither the State Governments nor the Courts can modify, amend or alter the list of

Scheduled Tribes. The plain consequence is that the entries in the Scheduled Tribes Order have to be read as they stand, though the power to

modify or amend the entries is exclusively vested in Parliament. Neither the State Government nor the Court can hold that a part of a tribal

community, though specifically mentioned in the Scheduled Tribes Order, would stand excluded. Conversely, it would be impermissible to hold

that though a tribe or tribal community is not specifically mentioned in the Scheduled Tribes Order, that other tribe is synonymous with what is

specifically mentioned. Article 342 empowers the President to specify the tribes or tribal communities or parts or group within them which shall for

the purpose of the Constitution be deemed to be Scheduled Tribes. Clause (2) of Article 342 empowers Parliament to include in or exclude from

the list of Scheduled Tribes specified in a notification under Clause (1). The principle that no authority other than Parliament by law can amend the

Presidential orders was reiterated by the Supreme Court in State of Maharashtra v. Mana Adim Jamat Mandal (supra). Entry 18 to Part 9 of the

Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 interalia designates the Mana Community as a Scheduled Tribe. Entry

18 designates several tribes including Gond. The Supreme Court held that each of the tribes mentioned in Entry 18 was a separate tribe by itself

and not a subtribe of Gond. Therefore, ""Mana"" is not a subtribe of Gond but a separate tribe by itself and is a Scheduled Tribe.

29. The second conceptual issue which is distinct from the first is the question as to whether a particular applicant is able to establish a claim that he

or she belongs to a tribe which has been designated in the Scheduled Tribes Order. This is a matter which is to be determined on the basis of all

the available evidence. The burden to establish that the individual belongs to a Scheduled Tribe is on that person, in view of the provisions of

Section 8 of the said Act. The purpose of adducing evidence in such a case is not to include or exclude from the entries contained in the Scheduled

Tribes Order, 1950. The object and purpose is to establish as to whether an individual who claims to belong to a Scheduled Tribe does or does

not belong to that tribe. The application of the affinity test for this purpose is not prohibited. Neither the Judgment in Thandan''s case (supra) nor

the Judgments in Milind Katware''s case (supra) or Mana Adim (supra) prohibit an inquiry into the question as to whether an applicant in fact

belongs to a Scheduled Tribe. In fact, such an inquiry is a basic postulate before the benefits of reservation can be granted to an applicant who

claims to belong to a Scheduled Tribe. In a recent judgment in Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by

LRs. and Others, the Supreme Court held that ""before a person can obtain a declaration that he is a member of a Scheduled Tribe, he must be a

member of a tribe"" (at para 16 p.10)

30. In State of Maharashtra and Ors. v. Ravi Prakash 2006 AIR SCW 6093 Babulalsing Parmar and Anr.6 the Supreme Court had occasion to

consider whether it was open to the Scrutiny Committee to let in oral evidence in order to determine whether an applicant for a caste certificate

does in fact belong to a Scheduled Tribe. The respondent before the Supreme Court claimed to be a member of a Scheduled Tribe, namely the

Scheduled Tribe by the name of Thakur under Entry No. 44 of the Presidential Order. A caste certificate was issued to the respondent and on the

strength thereof he had obtained admissions and appointments into various institutions on the basis of the certificate. The Scrutiny Committee

opined that the respondent did not belong to the Thakur Scheduled Tribe and that in fact, he belonged to the Kshatriya Thakur caste, upon which

the Scheduled Tribe certificate was cancelled. A Division Bench of this Court had held that the Scrutiny Committee had no competence to go into

the question by holding an inquiry into whether the respondent belonged to the Thakur caste of the Kshatriya category. Two separate judgments

were written by the Learned Judges constituting the Division Bench. Kochar, J. held that the inquiry before the Scrutiny Committee must accord

greater credence to documentary evidence as opposed to oral evidence. The Court held that if there was a preponderance of documentary

evidence, this must be accepted without any further probe or scrutiny. The Supreme Court, in an appeal by the State, recorded its disapproval of

the observations of the Division Bench and to the directions issued in the Judgment of this Court. In paragraphs 12 and 13 of the Judgment, the

Supreme Court held thus:

The Caste Scrutiny Committee is a quasijudicial body. It has been set up for a specific purpose. It serves a social and constitutional purpose. It is

constituted to prevent fraud on Constitution. It may not be bound by the provisions of Indian Evidence Act, but it would not be correct for the

superior courts to issue directions as to how it should appreciate evidence. Evidence to be adduced in a matter before a quasijudicial body cannot

be restricted to admission of documentary evidence only. It may of necessity have to take oral evidence....

Moreover the nature of evidence to be adduced would vary from case to case. The right of a party to adduce evidence cannot be curtailed. It is

one thing to say how a quasijudicial body should appreciate evidence adduced before it in law but it is another thing to say that it must not allow

adduction of oral evidence at all.

The Supreme Court held that it did not agree with the conclusion of this Court that no inquiry was permissible at all, once it is found that the name

of the person concerned in whose favour a certificate had been granted is synonymous with the name of a tribe notified as a Scheduled Tribe. The

Court held that the Judgment in Madhuri Patil''s case is an authority for the proposition that no immunity in absolute terms can be claimed only

because a claim is made by a person that he belongs to a tribe notified to be a Scheduled Tribe. The Supreme Court emphasised, in the following

observations, that a person who obtains the benefit of reservation without actually belonging to a Scheduled Tribe notified in the Presidential

Order, would be guilty of playing a fraud on the Constitution:

The makers of the Constitution laid emphasis on equality amongst citizens. Constitution of India provides for protective discrimination and

reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes

an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under

the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the

Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the

State shall be helpless spectator in the matter.

The Court held that merely because the surname of the applicant tallied with the name of the tribe which finds mention in one or the other entries of

the Schedule appended to the Order, this could not be treated as sacrosanct. The High Court was held to be not justified in observing that no

inquiry in relation to the correctness of the certificate could be made by the Committee. The Supreme Court held that the observations of this

Court were not only contrary to the Judgments of the Supreme Court but also fell short of ground realities. Both the Judgments in Palghat Jilla

Thandan (supra) and Milind Katware''s case (supra) were cited before the Supreme Court in support of the submission that an inquiry into the

tribal status of the applicant was prohibited. The Court noted that Palghat Jilla Thandan did not deal with a case where a certificate had been

granted wrongly to an applicant, though he was not entitled thereto.

31. The principle that emerges from the Judgment of the Supreme Court in Ravi Prakash Babulalsing Parmar'' scase (supra) is that in the course of

verifying the correctness of a caste certificate, the Scrutiny Committee is not precluded from inquiring into whether the applicant has in fact

established his membership of a notified tribe. For this purpose, the inquiry is not confined merely to a consideration of the documentary evidence

upon which reliance is placed by the applicant. The Scrutiny Committee performs a quasijudicial function and the object of the constitution of the

Committee is to prevent a fraud on the Constitution being practised by spurious claims to Scheduled Caste and Scheduled Tribe status. The

Scrutiny Committee is not precluded from relying upon oral evidence in arriving at its determination.

32. In Lilly Kutty Vs. Scrutiny Committee, S.C. and S.T. and Others, which arose out of the Kerala (Scheduled Castes and Scheduled Tribes)

Regulation of Issue of Community Certificates Act, 1996, the Supreme Court upheld the decision of the Scrutiny Committee which had found that

as a matter of fact the appellant had been born and brought up as a Christian and was never accepted as a member of the Hindu Pulayan

Scheduled Caste community. Mr. Justice C.K. Thakker observed thus:

In the instant case, it is the appellant who claimed to belong to a Scheduled Caste. In view of the finding of fact recorded against her that she was

born and brought up as a Christian, the caste certificate was ordered to be cancelled. In view of the said finding, it is immaterial that she had

obtained a certificate showing her caste to be the Hindu Pulayan Scheduled Caste. If her case was that she was reconverted to Hinduism, it was

for her to put forward such claim and to prove it in accordance with law. In our opinion, Section 10 is clear and expressly enacts that when a

person claims to be a member of a Scheduled Caste or a Scheduled Tribe, the burden of proof that he or she belongs to such caste or tribe is on

him/her. Since the appellant was born as a Christian and continued to remain as a Christian, the order passed by the Scrutiny Committee cancelling

the appellant''s certificate and confirmed by the High Court cannot be said to be illegal and no interference is called for.

Mr. Justice S.B. Sinha in a concurring Judgment held thus:

Any action by the authorities or by the people claiming a right/privilege under the Constitution which subverts the constitutional purpose must be

treated as a fraud on the Constitution. The Constitution does not postulate conferment of any special benefit on those who do not belong to the

category of people for whom the provision was made.

The same principle has been reiterated by the Supreme Court in Bank of India and Another Vs. Avinash D. Mandivikar and Others, and R.

Vishwanatha Pillai Vs. State of Kerala and Others, . In R. Vishwanatha Pillai (supra) the Supreme Court held thus:

A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus

depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person

who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified

to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be

exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable

consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an

individual acquired a status by practising fraud.

33. It would now be appropriate to advert to some of the Judgments of this Court on the subject.

JUDGMENTS OF THIS COURT

34. In a number of Judgments delivered by Division Benches of this Court, both before and after the enactment of the State Legislation, it has been

held that in every case it is necessary that an applicant who asserts a claim to belong to a Scheduled Caste, or as the case may be, a Scheduled

Tribe must establish in the first place membership of that tribe. A Division Bench of this Court, as far back as in 1986, emphasised this in

Maharashtra Adivasi Thakur Jamat Seva Mandal and Ors. v. State of Maharashtra and Ors. 1986 Mh.L.J. 1021:

Hence it is necessary to find out in each case as to whether the claimant belongs Scheduled Tribe or the Caste carrying the same name. By direct

method or obliquely a Caste which is not included in the Schedule relating to Scheduled Tribe, cannot be equated with or conferred the status of

Scheduled Tribes. It is experienced that benefits are snatched away by most vocal classes, and thus keeping the weaker among the weak always

weak. This not only robs them of their share in benefits but creates further inequalities amongst the unequals. Therefore an enquiry in each case is a

must

In Rahul Vasantrao Thakur v. State of Maharashtra and Ors. W.P. No. 2869 of 2003 decided on 5th June, 2003, a Division Bench presided over

by Chief Justice C.K. Thakker (as the Learned Judge then was) considered the correctness of the view of the Scrutiny Committee which had

applied the affinity test in rejecting the claim of the applicant to belong to the Thakur Scheduled Tribe. The Scrutiny Committee had held thus:

Their ancestors'' profession was agricultural labour his mother tongue is Marathi. He stated that the language of his community is Marathi and he

was unable to speak or tell anything about dialect of Thakur, Scheduled Tribe. He stated about the social worker and the social organisations

working for their caste which are not found in Thakur, Scheduled Tribe. Munja Dev is a family and community deity of the candidate. Diwali,

Dasara, Akharpakh are the festivals they observed. During hearing when asked who officiates the marriage in Thakur, Scheduled Tribe the

appellant could not reply satisfactorily. It is found that appellant and his brother was totally ignorant about specific customs and traditions found in

Thakur, Scheduled Tribe. Thus the information given by appellant and brother could not satisfy the Scrutiny Committee and it is found that they

have no affinity and ethnic linkage with Thakur, Scheduled Tribe.

The Division Bench held that there was no illegality in the decision of the Committee. In Pandurang Hanmantrao Yesardekar v. The State of

Maharashtra and Ors. W.P. No. 657 of 1997 decided on 20th December, 2005. Mr. Justice D.B. Bhosale, speaking for the Division Bench,

noted that during the course of the personal hearing the candidate had furnished information in regard to the traditional occupation of his family,

deities worshipped, surnames in the community, places of residence, mother tongue and dialect, and the attire of women. The Committee had

found that the answers did not accord with the customs and practices that were known to exist in the Thakar Scheduled Tribe. The Division Bench

upheld the decision of rejection. In Ashwini Anil Chavan Vs. State of Maharashtra and Others, a Division Bench of this Court held that the

Scrutiny Committee was justified in applying the affinity test to decide as to whether the applicant belongs to a Scheduled Tribe and in such a case

there was no question of going behind an entry in the Presidential Order issued under Article 342(1) of the Constitution:

The Scrutiny Committee is justified in taking the view that merely because the documents which have been produced contain a reference to the

petitioner or his relatives belonging to the Thakur Community that would not in itself be sufficient to demonstrate that she actually belongs to the

Thakur Scheduled Tribe. Reference to the question of affinity is perfectly justified for the reason that the individual must be shown on evidence to

belong to the Scheduled Tribe concerned. In such a case, there is no question of going behind an entry in the Presidential Order issued under

Article 342(1) of the Constitution. The exercise is to determine whether the individual belongs to a Scheduled Tribe. This is perfectly justifiable and

for that, recourse to the affinity test is legitimate.

In Kavita Basantsinh Bisen v. Scheduled Tribes Caste Certificate Scrutiny Committee and Ors. W.P. No. 1406 of 1996 decided on 14th

February, 2006. Mr. Justice J.N. Patel, speaking for the Division Bench, upheld the cancellation of a caste certificate on the ground that the

petitioner was totally ignorant of the sociocultural and ethnic linkage of the Thakur Scheduled Tribe. The Division Bench affirmed the view of the

Scrutiny Committee by observing thus:

The Scrutiny Committee also does not find quarrel with the documents presented by the petitioner in support of her caste claim. The question, then

assumes importance, is whether the petitioner belongs to caste Thakur, which is notified as a Scheduled Tribe, or upper caste Thakur which

belongs to Kshtriya Varna and, therefore, for verifying the caste claim of the petitioner, affinity test assumes importance and accordingly Caste

Scrutiny Committee has put the petitioner on notice to establish her affinity towards Thakur, Scheduled Tribe. The information, which came to be

furnished by the petitioner and on her behalf, has been spelt out in the impugned Order, and the Scrutiny Committee has taken into consideration

the sociocultural traits, characteristics and ethnic linkage of caste Thakur, Scheduled Tribe, and came to the conclusion that the petitioner does not

belong to caste Thakur, Scheduled Tribe, as, according to the petitioner, her Gotra is Bharadwaj which is not so in the persons belonging to caste

Thakur, Scheduled Tribe, and her traditional festivals are Dusshera, Rakshabandhan and Navratra, and it was stated that in the community of the

petitioner, marital relations are performedwith Rajput Thakur, Kshtriya Thakur and Pardeshi Thakur, and a renowned personality from her

community was Maharana Pratap, who was a great and wellknown King of Rajput Thakur community.

In Shri Murlidhar Ramkrishna Gathe v. State of Maharashtra W.P. No. 2748 of 2000 decided on 18th January, 2007 the petitioner was

employed in the Government Transport Services on the basis that he belongs to the Thakur Scheduled Tribe. The Scrutiny Committee held that

from the documents it was not possible to hold as to whether the petitioner belonged to the Thakur Scheduled Tribe. The Committee applied the

affinity test and came to the conclusion on the basis of the answers furnished by the applicant that he had not been able to establish affinity to the

Scheduled Tribe in question. Mr. Justice F.I. Rebello, speaking for the Division Bench held thus:

This Court has judicially recognised, that the word or surname ""Thakur"" is shared by both forward and backward communities. The burden of

proving that the person belongs to a S.T./S.C./O.B.C. Lies heavily on the person seeking the certificate. The role of the Vigilance Committee is to

conduct an enquiry to ascertain and verify the material produced by the candidate including as to traits and characteristics claimed. If the material

and information on traits, characteristics, customs, deities and other information did not relate to Thakur S.T. further verification of that material

normally would be uncalled for. The law as declared in Madhuri Patil (supra) would require verification of the information given. If that information

was associated with the Thakur S.T. then to rule out that the information given was based on bookish knowledge, the vigilance enquiry is required

to be conducted to establish that the evidence produced is genuine. Once the committee with whom are associated experts, conversant with the

anthropological and ethnological traits and other characteristics of the community, rule out the association of the Petitioner to that community, the

burden is on the Petitioner to establish otherwise. That burden has not been discharged.

From the affidavit in reply filed by the Research Officer, the Court noted that the petitioner hailed from Khamgaon in Buldhana District. Before the

area restrictions were removed in 1976, the Thakur Scheduled Tribe was restricted only to five Districts, namely (a) Ahmednagar District in

Akola, Rahuri and Sangamner Taluka, (b) in Kolaba District (now Raigad), Karjat, Khalapur, Pen, Panvel and Sudhagad Talukas and Matheran

(c) In Nashik District Igatpuri, Nashik and Sinnar Talukas (d) In Thane District Thane, Kalyan, Murbad, Bhiwandi, Vasai, Wada, Shahapur,

Palghar, Jawhar and Mokhada talukas. It was not the case of the petitioner that his family had migrated to Khamgaon from any of these areas. The

population of the Thakur Scheduled Tribes in Maharashtra increased from 1,78,805 in the year 1971 to 3,23,191 in the year 1981. Dealing with

this, the Division Bench observed as follows:

This cannot be explained as a normal reproduction process leading to the increase in the population of S.T. within 10 years. Scheduled Tribes by

their very nature stay close to their original habitat unless they have migrated for work or education which very few still do. This sudden spurt, can

reasonably be explained, that persons who did not belong to Thakur S.T. because they also bore a surname Thakur made false claims as belonging

to Thakur S.T. though they did not belong to Thakur S.T.

The Court observed that the Scrutiny Committee was justified in applying the affinity test. The petition was accordingly dismissed. In Vijaykumar

S/o Madhukar Ingle v. The Caste Scrutiny Committee W.P. No. 731 of 2007 decided on 20th February, 2007 a Division Bench consisting of Mr.

Justice A.H. Joshi and Mr. Justice R.C. Chavan held that far from loosing its importance the affinity test has ""a pivotal role'' in the adjudication of a

tribe claim. The Division Bench referred to the Judgments in Madhuri Patil and in Gayatrilaxmi Bapurao Nagpure Vs. State of Maharashtra and

others, case and held that upon the enactment of the State Legislation in 2000, a claimant before the Scrutiny Committee has to prove his claim like

any other fact that is required to be proved before a Court of law or Tribunal. In Nitin Ramadas Chavan v. State of Maharashtra and Ors. W.P.

No. 2447 of 2007 decided on 25th April, 2007 the Division Bench came to the conclusion that the affinity test has assumed vital importance. The

applicant had failed to establish affinity with the Thakar Scheuled Tribe, as is evident from the following observations:

The petitioner stated that the remarriage system, PitryaPitri system, Umbrya Umbari system, Padekhot system, Avanji system, Khoti system, Kothi

system etc., might be prevalent in his community but he was unaware about the said systems due to migration of his family from Ramling to Shirur.

He further stated that he could not state about the customs and traditions of their community.

Mr. Justice R.M. Savant speaking for the Division Bench held that the petitioner had not been able to even mention a tradition, custom or tribe

peculiar to the Thakar Community. An affidavit dated 28th March, 2008 has been filed by Dr. Prem Singh Meena, Secretary, Tribal Development

Department in which it has been stated that the main problem arises only in respect of communities where Pseudo tribals are trying to grab the

benefits which the Constitution has conferred only on the deprived classes. There are a few communities like Kolis, Thakurs, Halbi (Koshti),

Dhanwar and Mana where an overwhelming majority of invalid claims is confined. The Scrutiny Committee has to be especially vigilant where an

attempt is being made to deprive genuine tribals of the benefits given to them in the Constitution and consequently, a determination is made on the

basis of (i) Information supplied in the prescribed column; (ii) Documentary evidence; (iii) The affinity test; (iv) Vigilance report; and (v) Other

evidence, oral or otherwise that may be adduced. In a further affidavit dated 21st September, 2008 consolidated figures have been furnished in

regard to the working of all the eight Scrutiny Committees functioning in the State of Maharashtra for the years 2003 to 2007. It has been stated

that during this period, the Committees together validated 1,09,914 claims. A total of 5539 claims came to be rejected. In these circumstances, it

has been stated that almost 95% of the claims have been accepted and the rate of rejection is a little over 5%. 604 claims have been rejected

exclusively on the ground of lack of affinity; 90 claims have been rejected on the ground of lack of documentary evidence; 1,413 claims were

rejected on the ground that the documentary and other evidence was contrary to the claim and 3209 claims were rejected due to a combination of

the aforesaid reasons. Most of the claims which have been rejected have been made by pseudo tribals from 5 communities who are trying to take

disadvantage of a similarity of nomenclature viz. (i) Kolis who claim to be Mahadeo Kolis or Tokre Kolis; (ii) Rajput Thakurs, Bramhabhat Kavi

Thakurs claiming to be Thakur Scheduled Tribes; (iii) Koshtis claiming to be Halbas; (iv) Dhangars claiming to be Dhanvars; and (v) Munnerwars

claiming to be Munnerwalu Scheduled Tribes.

35. We have adverted to the Judgments of the Division Benches of this Court in order to emphasise that the line of reasoning that has been

followed is that before an applicant can be validly regarded as being eligible to receive the benefits attached to being a member of a Scheduled

Tribe, the burden lies on the applicant to establish membership of the tribe. An inquiry into whether the applicant belongs to a Scheduled Tribe is

not precluded by the Presidential Order or by the Judgments of the Supreme Court in Palghat Jilla Thandan and Milind Katware. For the purposes

of determining as to whether an applicant belongs to a Scheduled Tribe, the Scrutiny Committee has to be satisfied on the basis of all the available

material on the record that such is the position. The material on the record would include documentary evidence and oral evidence and

comprehend the application of the affinity test.

36. Counsel appearing for the petitioners, however, urged before the Court that a contrary view had been taken in certain Division Bench

Judgments of this Court. We have already noted that the contrary view that was taken by this Court in Raviprakash Babulalsing Parmar Vs. State

of Maharashtra and Others, has been overruled by the Supreme Court in the appeal by the State of Maharashtra and Others Vs. Ravi Prakash

Babulalsing Parmar and Another, The Division Bench of this Court had noted that the documents that had been produced by the candidate

reflected his caste as being Thakur and on that basis, this Court had held that the Caste Scrutiny Committee was bound to grant a validity

certificate to the candidate. Kochar, J. had in fact held that the Scrutiny Committee must give greater credence to documentary evidence, as

opposed to oral evidence. The entire approach of the Division Bench was considered to be erroneous by the Supreme Court. Reliance was placed

by the Petitioners on the Judgment of a Division Bench in Pandurang Rangnath Chavan Vs. The State of Maharashtra and others, In Pandurang

Rangnath Chavan''s case (supra), the Division Bench made a reference to the legislative history underlying the designation of Thakur as a

Scheduled Tribe. Initially, by the Constitution (Scheduled Tribes) Order, 1950 only Thakur was declared to be a Scheduled Tribe under Entry 21

in Part III of the First Schedule pertaining to the erstwhile State of Bombay. Subsequently, by the Scheduled Castes and Scheduled Tribes Order

(Amendment) Act, 1956, the 1950 Order was amended and Thakur or Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar from certain

Talukas in Ahmednagar District were declared to be Scheduled Tribes. Subsequently, by the Amending Act of 1976 the area restrictions were

removed and consequently Entry 44 in Part IX of the Second Schedule to the Act specifically includes Thakur, Thakar, Ka Thakur, Ka Thakar,

Ma Thakur, Ma Thakar. The State Government, however, had by a Resolution dated 8th July, 1982 declared that in an earlier G.R. of 1976, the

Thakar community would be added (by Entry No. 200) as an O.B.C.. The Division Bench held that in view of the Judgment in Palghat Jilla

Thandan''s case, it was for Parliament alone to specify tribes or tribal communities or parts or groups thereof to be Scheduled Tribes in relation to

the State. Hence it was not open to the State Government to determine that though a community was listed as a Scheduled Tribe by the Scheduled

Castes and Scheduled Tribes Order (Amendment) Act, 1976, it would be treated as an O.B.C. in the State. The Scheduled Tribes Order had to

be applied as it stood. The Division Bench noted that in that case there was voluminous evidence and the documentary evidence on the record

clearly showed that the petitioner belonged to the Scheduled Tribe of Thakar. Chavan''s case therefore involved a situation where despite a

Parliamentary enactment notifying a community as a Scheduled Tribe, the State Government sought to designate it as an OBC. This was a clear

encroachment on the Parliamentary power under Article 342(2). Chavan''s case does not deal with the standards to be applied in determining

whether an individual has established his or her membership of a Scheduled Tribe. The Judgment of the Division Bench does not preclude an

inquiry into the question as to whether a person who stakes a claim to belong to a Scheduled Tribe does in fact belong to that tribe. The decision in

Baburao Shinde Vs. State of Maharashtra and Others, follows the same line of reasoning. The Division Bench held that once the Committee

answers the question as to whether the applicant belongs to a Scheduled Tribe in the affirmative, it would have to accept the claim of the applicant

notwithstanding the State Government'' sResolution designating the Thakar community as an O.B.C.. This is apparent from the following

observations of the Division Bench:

The claimant of such a caste has to stand on his own feet and at the first instance he is required to prove his claim that he belongs to ""Thakar or

Thakur"" caste and therefore, such an issue is required to be framed by the Committee. In case the Committee answers it in the affirmative it has no

further powers other than to accept the claim of the claimant as belonging to the Scheduled Tribes notwithstanding the State Government

Resolution enlisting the said caste in the Other Backward Classes. In case the issue is answered in the negative the Committee has no further

powers to give a declaration that the claimant belongs to ""Thakar or Thakur"" caste, a nontribal group simply because there is another entry of the

same nomenclature in the list of the Other Backward Classes as per the Government Resolution dated 871982."" In Chandrakant Bajirao Shinde

Vs. State of Maharashtra, Tribal Development, Mantralaya, The Municipal Corporation of the City of Pune and The Scheduled Tribes Certificate

Scrutiny Committee, a Division Bench set aside the Judgment of the Scrutiny Committee which had found that ""though the petitioner belongs to

caste Thakar yet since he belongs to caste Thakar of Bhat category, he cannot be said to be belonging to Thakar Scheduled Tribe."" The Division

Bench was of the view that such an approach was not open to the Scrutiny Committee in view of the Judgments of the Supreme Court in Palghat

Jilla Thandan and Milind Katware. The case was remanded back to the Scrutiny Committee for a fresh decision. The Judgment of the Division

Bench in Chandrakant Bajirao Shinde (supra) is prior to the Judgment of the Supreme Court in Raviprakash Babulalsing Parmar (supra). We do

not read the decision in Chandrakant Bajirao Shinde''s case as laying down any principle to the effect that the Scrutiny Committee is debarred from

considering whether a person who applies for a caste certificate is in fact a member of a Scheduled Tribe. Indeed, if the judgment is read to take a

contrary view, it would stand impliedly overruled by the decision of the Supreme Court in Parmar. Reliance has also been placed on Division

Bench Judgments in Narendra Dhudku Thakur Vs. Scheduled Tribe Certificate Scrutiny Committee and Others, and in Arun Ingale Vs. State of

Maharashtra and Another, Both these Judgments would now stand overruled in view of the Judgment of the Supreme Court in Raviprakash

Babulalsing Parmar''s case. The Judgment of the Division Bench of this Court in Raviprakash Babulalsing Parmar''s case has been set aside by the

Supreme Court. Our attention has also been drawn to a Judgment of the Division Bench in Shri Pravin Pandurang Ingale v. State of Maharashtra

and Ors.W.P. No. 3737 of 2001 decided on 24th November, 2004. The Division Bench was of the view that Chandrakant Bajirao Shinde'' case

precluded the Scrutiny Committee from enquiring into sociocultural traits and ethnic linkage. The Court held thus:

We are of the view that in view of the judgment of the Division Bench in Chandrakant Bajirao Shinde Vs. State of Maharashtra, Tribal

Development, Mantralaya, The Municipal Corporation of the City of Pune and The Scheduled Tribes Certificate Scrutiny Committee, , the

Scrutiny Committee is not justified in proceeding to inquire on the basis of sociocultural traits and ethnic linkage to find out that whether the

Petitioner belongs to ""Thakur Scheduled Tribe."" The Scrutiny Committee in unequivocal terms states that the caste of the Petitioner is ""Thakur"".

This view of the Division Bench is not reflective of the correct position in law. As we have already noted, ever since the Judgment of the Supreme

Court in Madhuri Patil''s case, the application of the affinity test is recognised as being valid in law. The State Legislation in Maharashtra and the

Rules framed thereunder also establish the same position. The Judgment of the Division Bench in Pravin Pandurang Ingale''s case (supra),

therefore, does not state the correct position in law.

In Amol Narayan Wakkar and Another Vs. State of Maharashtra and Others, Mr. Justice A.P. Shah (as the Learned Judge then was) speaking

for a Division Bench of this Court held that the Scrutiny Committee was not justified in proceeding with an enquiry on the basis of socio cultural

traits and ethnical linkage to find out whether the petitioners belonged to the Thakar Scheduled Tribe. The Division Bench held that the Scheduled

Tribe Order has to be read as it is and must be applied accordingly. The observations of the Division Bench holding so run contrary to the

judgment in Madhuri Patil''s case and in any event would stand impliedly overruled by the judgment in Parmar''s c ase.

In Pragati Vasantrao Bhujade v. Scheduled Tribes Castes Certificate Scrutiny Committee W.P. 571 of 2004 decided on 13th December, 2004

the petitioner claimed to belong to the Halbi Tribe recognized as a Scheduled Tribe in Entry No. 19. The petitioner contended that her family and

ancestors hail from Achalpur which was in the border of Melghat identified as the area occupied by Halbi tribals even prior to the removal of area

restrictions by the amendment of 1976. The petitioner submitted fourteen documents showing that her tribe was Halbi, including amongst them a

School Leaving Certificate of her grand father whose caste was recorded as Halbi in 1932. The Scrutiny Committee rejected the documentary

evidence and after applying the affinity test, rejected the claim of the petitioner. The Division Bench held thus

The Scrutiny Committee could not have applied the test of affinity when a clear case of a person belonging to Halbi tribe was established.

Needless to mention that the affinity test is required to be applied in the event of doubt or in order to resolve the dispute as to whether or not the

person really belongs to a particular tribe. The case in hand is a clear case establishing the fact that the petitioner belongs to Halbi tribe. Not a

single document is on record to negative the case of the petitioner that she belongs to Halbi tribe. The report of the Vigilance Cell was also based

on applying the affinity test. As a matter of fact, no affinity test could have been applied in a clear case wherein no other view was possible based

on the documentary evidence.

These observations of the Division Bench have to be construed in the peculiar facts and circumstances as they appeared in that case. In that case,

the Division Bench held that there was unimpeachable documentary evidence going back to 1932 to establish that the petitioner belonged to the

Halbi Scheduled Tribe. It was in that context that the Division Bench held that the claim could not be invalidated purely on the basis of the affinity

test. The observations of the Division Bench have to be confined to the facts as they appeared in that case. However, the position of law stated by

the Division Bench that the affinity test is required to be applied in the event of doubt and that the affinity test cannot be applied where a clear case

of a person belonging to a tribe is established would be no longer good in light of the interpretation placed by us on the Act and the Rules. The

question as to whether it is established that a person belongs to a particular Scheduled Tribe in the first place is to be determined on the basis of

the entirety of the evidence - documentary, oral and on the application of the affinity test. It would, therefore, not be correct to hold that the

question of the application of the affinity test can arise only in the event of doubt. The affinity test is as much a part of the determination as indeed

the documentary and oral evidence. To that extent, the observations contained in the judgment of the Division Bench in Bhujade''s case would not

be correct. The Judgment in Prakash Hari Mahale v. State of Maharashtra W.P. 6533 of 1997 decided on 24th January, 2006 was in a case in

which as the Division Bench noted, the Scrutiny Committee had not recorded a finding that the petitioner did not have ethnic links with the Thakur

tribe. The Scrutiny Committee, however, held that the petitioner had not proved any ethnic affinity to the Ka Thakur, Ma Thakur Tribes and on

that ground could not be regarded as belonging to the Thakur Tribe. The Division Bench held that the reasoning of the Scrutiny Committee to the

effect that the claimant must also prove that he had an affinity with the Ka Thakur and Ma Thakur tribes was erroneous. A person who belongs to

the Thakur tribe may or may not have any ethnic link with Ka Thakur or Ma Thakur. But that would not mean that the person concerned ceases to

belong to the Thakur tribe. This case is therefore one in which the applicant had established his membership of the Thakur Scheduled Tribe.

ANTHROPOLOGICAL MATERIAL

37. In the compilation that has been placed on the record by the State Government, reliance is placed on the written work of Anthropologists in

support of the submission that the application of the affinity test is an invaluable aid in the determination of the question as to whether an applicant

belongs to a Scheduled Tribe. A monograph by Prof. R.K. Mutatkar, Honorary Professor of Anthropology at the University of Pune, entitled

`Tribal Identity: Policy Issues'' is instructive. The monograph states that Government of India has recommended that the following broad

parameters be applied in determining tribal characteristics:

(i) Primitive traits;

(ii) Distinct culture;

(iii) Geographical isolation;

(iv) Distinct dialect;

(v) Animism;

(vi) Clan systems;

(vii) Shyness of nature; and

(viii)Backwardness.

The monograph notes that due to contact with the outside world and the effort to draw tribal communities into the democratic political process, a

movement towards acculturation has been taking place. However, the author states that ""acculturation does not destroy the hard core of culture

which is manifested in their rituals, beliefs, ceremonies and festivals, in the dialect, and in music and dance."" Prof. Mutatkar speaks of the danger of

allowing caste groups with a similar nomenclature or with a tribal suffix or prefix to claim benefits which are meant for genuine members of the

Scheduled Tribe:

When a nontribal group or a caste group with similar nomenclature or with tribal suffix or prefix to their name claim tribal status, they are not only

harming the interest of a tribal group with whom they are trying to identify by putting up a tribal claim, but they are also harming the interest of all

tribals in the State and the country, since the benefits of Scheduled Tribe are bestowed according to the generic category of Scheduled Tribe and

not according to a specific tribal group. The pseudotribal group, therefore, nullifies the constitutional guarantees of all the scheduled tribes in a State

and the country.

38. Another instructive article on the subject, entitled ""PseudoTribalization: An Anthropological Perspective"", is written by Dr. Robin D.

Tribhuwan, an Anthropologist associated with the Tribal Research & Training Institute at Pune. The article by Dr. Tribhuwan refers to similarities

of nomenclatures between tribal and nontribal communities. This is evident from the following table:

The monographs of Prof. Mutatkar and Dr. Tribhuwan have emphasised that there has been a rapid rise in the growth rate of the Scheduled Tribes

between 1971 and 2001 which is not reflective of a natural biological growth but an attempt by communities which do not genuinely have an

affinity to Scheduled Tribes towards pseudotribalization.

These contributions in the written work of experts on the subject only go to emphasise the dangers of the benefits granted to the Scheduled Tribes

being frittered away at their expense if unverified claims of impostors are not nipped in the bud.

39. We will now proceed to answer the questions framed for the determination of the Full Bench.

THE CONCLUSIONS

40. Our answers to the questions referred are as follows:

(i) The burden of establishing that the applicant belongs to a tribe notified as a Scheduled Tribe is on the applicant u/s 8 of the State Act. The

Competent Authority which issues the caste certificate, the Appellate Authority and the Scrutiny Committee have powers of a Civil Court while

trying a suit under the Code of Civil Procedure, 1908, particularly in summoning and enforcing the attendance of persons; requiring the discovery

and production of documents; receiving evidence on affidavit, requisitioning any public record and issuing commissions for the examination of

witnesses or for the production of documents u/s 9 of the Act. The Competent Authority before whom an application for a caste certificate is filed

has to be satisfied about the genuineness of the claim u/s 4(1). The Caste Scrutiny Committee is required by Section 6 to verify each caste

certificate before it issues a certificate of validity. Under the Rules, an application for grant of a certificate has to be accompanied by a full

disclosure on affidavit containing information stipulated in subrule (2) of Rule 3 and documents referred to in Sub-rule (3). Under Sub-rule (9) of

Rule 4, the Competent Authority, if it is not satisfied with the claim of the applicant on a scrutiny of the evidence produced, is empowered to order

a further inquiry as it deems fit. After considering the evidence produced by the applicant or any other person on his behalf and the statement of the

applicant and after taking into account the material gathered by the Competent Authority, the Competent Authority has to issue a certificate if it is

satisfied about the genuineness of the claim. In an appeal against the decision of the Competent Authority, the Appellate Authority is empowered

under Rule 8 to receive or call for further documents before passing such further orders as it deems fit. Once the caste certificate is issued, an

applicant has to submit documents for verification by the Scrutiny Committee under Rule 12(2) and an affidavit in FormF containing full disclosure

of the information relevant to the determination of the tribal status. Under Rule 12(2), the Scrutiny Committee, if it is not satisfied with the

documentary evidence produced, has to forward the application to the Vigilance Cell for a school, home and other inquiry. Under subrule (4) the

Vigilance Officer has to personally verify and collect all the facts about the social status claimed by the applicant. If the Scrutiny Committee is not

satisfied about the claim of the applicant on the basis of the report of the Vigilance Cell and other documents available, a notice to show cause is

issued to the candidate for a personal hearing. The Scrutiny Committee must be satisfied about the genuineness of the claim and the correctness of

the Scheduled Tribe certificate. If it is not satisfied, it has to pass an order of cancellation and of the confiscation of the certificate. The Competent

Authority, the Appellate Authority and the Scrutiny Committee exercise quasijudicial powers in arriving at a determination with reference to a claim

to belong to a Scheduled Tribe. These Authorities must have regard to the entire body of evidence, including the documentary and oral evidence.

The affinity test is an integral part of the determination of the correctness of the claim. As quasijudicial authorities, each of these Authorities must

apply settled principles of law in the evaluation of evidence. A claim can be allowed only where the Authority is satisfied about the genuineness and

the correctness of the claim on the basis of the entire evidence on the record.

(ii)(a) The mere fact that the documents produced by a person reflect his surname as being synonymous with the name of a designated tribe, is not

sufficient to establish that the applicant belongs to a Scheduled Tribe. Before a person can be regarded as belonging to a Scheduled Tribe, that

person must demonstrably be a member of the tribe. Allowing claims merely on the basis of an overlap between the surname of the person as

reflected in the documents produced and the name of a designated tribe may result in a grave miscarriage of justice and lead to the grant of benefits

to persons who are not genuinely members of a designated tribe. In order to determine whether a person genuinely belongs to a designated

Scheduled Tribe, the Scrutiny Committee must have regard to the entire body of evidence including on the question as to whether the applicant has

satisfied the affinity test.

(b) Where a person is not in possession of documentary evidence to meet the requirement of belonging to a particular tribe, he or she must make a

disclosure to that effect in the application form to be submitted to the Competent Authority in the first instance and before the Scrutiny Committee

subsequently. The absence of documentary evidence does not ipso facto result in the invalidation of the caste claim. The claim will have to be

scrutinized by the authority concerned on the basis of all the material available, including the affinity established by the applicant to a tribe. The

Competent Authority or, as the case may be, Scrutiny Committee shall apply established norms in the evaluation of evidence. The applicant has to

discharge the burden of establishing his or her caste claim u/s 8 of the Act. Whether the burden has been discharged is for the Competent

Authority/Scrutiny Committee to decide on the facts of each case. The quasijudicial function must focus on all relevant aspects such as whether the

absence of documentary evidence is due to poverty, illiteracy and isolation or whether it is a plea in the nature of suppression to prevent the real

status of the applicant from emerging before the authority.

(c) Where a person has some documents in his or her favour and/or partially satisfies the crucial affinity test, the question as to whether certification

should be granted would depend upon the overall view which is formed by the Competent Authority in the first instance and by the Scrutiny

Committee subsequently on the preponderating weight of the evidence. The nature of the documents that have been produced, the genuineness and

authenticity of the documentary evidence and the weight to be ascribed to the documents produced, are matters which must be decided by the

authority concerned. If a candidate has satisfied the crucial affinity test in part, it is for the Competent Authority and the Scrutiny Committee to

determine in each case as to whether, on considering the entire material on the record, the caste claim is correct and genuine. An answer in the

abstract cannot be furnished. It is for the quasijudicial authority in each case to arrive at its finding on the basis of the material on the record.

41. Before concluding, it is necessary for this Court to observe that both under the Act as well as under the Rules, the Competent Authority has to

be satisfied about the genuineness of the claim. Rule 4 which lays down the procedure to be followed by the Competent Authority for the grant or

rejection of an application for a certificate empowers the Competent Authority to hold an inquiry and to gather material for determining the

correctness of the claim. The function of the Competent Authority is not ministerial but is a vital step in the verification of tribe claims. The

Competent Authority must be provided with a sufficient infrastructure to process and verify the claims. We are of the view that it would be

necessary for the State Government to take immediate steps to provide infrastructure to the Competent Authorities in order to enable them to

determine in the first instance the correctness of the caste claim before a decision is arrived at on the grant or rejection of the application. The State

Government shall within a period of two months from today issue necessary administrative directions providing for infrastructure, including expert

assistance and a Vigilance Cell to assist the Competent Authorities to discharge their duties. The material which is gathered by the Competent

Authority under Rule 4 shall be transmitted by the Competent Authority to the Scrutiny Committee when an application is made to the Scrutiny

Committee for the grant of a validity certificate. We have issued these directions in order to ensure that the process of issuing caste certificates by

the Competent Authorities is not reduced to a mechanical exercise since both the Act and the Rules require the satisfaction of the Competent

Authority in regard to the correctness of the claim. The benefit of the exercise which has been conducted by the Competent Authority should be

made available to the Scrutiny Committees and the entire record before the former should be hence transmitted to the latter for the purposes of the

proceedings before the Scrutiny Committee. The State Government shall act on the aforesaid directions and take expeditious steps in compliance

within the time schedule that has been prescribed.

42. The Reference to the Full Bench shall stand answered accordingly in the aforesaid terms. Writ Petitions shall now be listed by the Registry

before the appropriate Benches at Mumbai, Nagpur and Aurangabad, as the case may be for disposal.