PRIYA PRAMOD GAJBEversusSTATE OF MAHARASHTRA AND OTHERS

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


                     PRIYA PRAMOD GAJBE                                  A
                                  v.
        THE STATE OF MAHARASHTRA AND OTHERS
                   (Civil Appeal No. 7117 of 2019)
                           JULY 11, 2023                                 B
          [B. R. GAVAI AND J. B. PARDIWALA, JJ.]
       Education/Educational Institutions – MBBS admission – Seat
reserved for Scheduled Tribe – Appellant secured the admission
claiming that she belonged to ‘Mana’ Scheduled Tribe – Claim             C
invalidated – Documents of pre-Constitution period relied upon by
the appellant – Probative value of – Held: Documents of the pre-
Constitution period showing the caste of the applicant and their
ancestors have got the highest probative value – If an applicant is
able to produce authentic and genuine documents of the pre-
Constitution period showing that he belongs to a tribal community,       D
there is no reason to discard his or her claim as prior to 1950, there
were no reservations provided to the Tribes included in the
Constitution (Scheduled Tribes) Order – In the present case,
appellant’s great grandfathers birth record shows the caste as
‘Mana’ – The said document relates to as early as 10.03.1924, while      E
another document of 14.04.1926 shows the caste as ‘Mani’,
however, there is no caste named ‘Mani’ – It is possible that there
could be some mistake in writing the caste as the original record
was written in Marathi and not in English – No reason to discard
the pre-Constitutional document of the period as early as 1924 –         F
Order of the Scrutiny Committee and High Court quashed and set
aside – Appellant belongs to ‘Mana’ Scheduled Tribe – Social Status
Certificate.
       Social Status Certificate – Scheduled Tribe – Affinity Test –
Held: Affinity test may not be regarded as a litmus test for             G
establishing the link of the applicant with a Scheduled Tribe – Claim
by a person belonging to the Scheduled Tribe cannot per se be
disregarded on the ground that his present traits do not match his
tribe’s peculiar anthropological and ethnological traits etc. –
Though the Affinity Test may be used to corroborate the documentary
                                                                         H
                                1261
1262              SUPREME COURT REPORTS                        [2023] 9 S.C.R.


 A     evidence, it should not be the sole criteria to reject the claim –
       Education/Educational Institutions.
               Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State
               of Maharashtra and Others 2023 SCC Online SC 326;
               Anand v. Committee for Scrutiny and Verification of
 B             Tribe Claims and Others (2012) 1 SCC 113 : [2011] 15
               SCR 386 – relied on.
               Ku. Yogita v. State of Maharashtra and Others Writ
               Petition No. 6103 of 2010 decided on 15.09.2016 –
               referred to.
 C                               Case Law Reference
       [2011] 15 SCR 38                   relied on               Para 12
               CIVIL APPELLATE JURISDICTION : Civil Appeal No.7117 of
       2019.
 D           From the Judgment and Order dated 22.12.2018 of the High Court
       of Judicature at Bombay in WP No.996 of 2018.
               Sudhanshu S. Choudhari, Adv. for the Appellant.
            Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha
       Pande, Bharat Bagla, Sourav Singh, Gaurav Agrawal, Kunal Cheema,
 E     Mohan M Sudame, Akshaya M. Sudame, Mrs. Aditi Deshpande Parkhi,
       Shivam Dube, Raghav Deshpande, Advs. for the Respondents.
               The Judgment of the Court was delivered by
               B. R. GAVAI, J.
 F             1. Application for intervention is allowed.
              2. This appeal challenges the judgment and order passed by the
       Division Bench of the High Court of Bombay dated 22nd December
       2018, thereby dismissing the petition filed by the appellant challenging
       the order passed by the Scheduled Tribe Caste Certificate Scrutiny
 G     Committee, Kokan Division, Thane (for short, ‘the Scrutiny Committee’)
       dated 12th December 2017, thereby invalidating the claim of the appellant
       that she belongs to ‘Mana’ Scheduled Tribe.
             3. The appellant is a student having secured admission in the first
       year of MBBS Degree Course in Respondent No.4/ College during the
 H     Academic Year 2016-17 against the seat reserved for Scheduled Tribe.
    PRIYA PRAMOD GAJBE v. THE STATE OF MAHARASHTRA                              1263
               AND OTHERS [B. R. GAVAI, J.]

The appellant claimed that she belongs to ‘Mana’ Scheduled Tribe. As            A
such, her case was referred to the Scrutiny Committee. The Scrutiny
Committee by order dated 12th December 2017 invalidated the claim of
the appellant on the following grounds:-
          i.     The appellant failed to satisfy the Affinity Test conducted
                 during the vigilance inquiry.                                  B
          ii.    The appellant failed to prove that she originally belongs to
                 an area where the people of Mana Scheduled Tribe reside.
      4. We have heard Shri Sudhanshu Choudhari, learned counsel
appearing for the appellant, Shri Shrirang B. Varma, learned counsel
appearing for the State of Maharashtra and Shri Kunal Cheema, learned           C
counsel appearing for the intervenor.
       5. Shri Choudhari, learned counsel for the appellant, relying on
the recent judgment rendered by a three Judges Bench of this Court in
the case of Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State
of Maharashtra and Others1, submits that once the pre-Constitutional            D
documents established that the appellant belongs to ‘Mana’ Scheduled
Tribe, further reference to the Vigilance Cell itself was not necessary.
He further submits that the Affinity Test cannot be applied as a litmus
test.
       6. Shri Varma, learned counsel appearing for the State of                E
Maharashtra, on the contrary, submits that the Scrutiny Committee as
well as the High Court have rightly concluded that the appellant has
failed to establish that she belongs to ‘Mana’ Tribe. He submits that
some of the documents show that the appellant’s forefathers entries are
‘Mani’. He, therefore, submits that in view of the conflicting documents,
it was necessary for the appellant to clear the Affinity Test. Relying on       F
a Full Bench judgment of the High Court of Bombay in the case of Ku.
Yogita v. State of Maharashtra and Others2, he submits that though
area restrictions have been removed in 1976, it will still be necessary for
a candidate to establish that the candidate’s family originally belongs to
an area for which a particular tribe was notified as a Scheduled Tribe.         G
      7. Shri Cheema, learned counsel appearing for the intervenor(s),
supports the arguments advanced by Shri Varma, learned counsel for
the State of Maharashtra.
1
    2023 SCC Online SC 326
2
    Writ Petition No.6103 of 2010 decided on 15.09.2016                         H
1264                SUPREME COURT REPORTS                         [2023] 9 S.C.R.


 A          8. This Court, in the case of Mah. Adiwasi Thakur Jamat
       Swarakshan Samiti (supra), has observed as under:-
                “20. It is not possible to exhaustively lay down in which cases the
                Scrutiny Committee must refer the case to Vigilance Cell. One of
                the tests is as laid down in the case of Kumari Madhuri Patil,
 B              (1994) 6 SCC 241. It laws down that the documents of the pre-
                Constitution period showing the cast of the applicant and their
                ancestors have got the highest probative value. For example, if an
                applicant is able to produce authentic and genuine documents of
                the per-Constitution period showing that he belongs to a tribal
                community, there is no reason to discard his claim as prior to
 C              1950, there were no reservations provided to the Tribes included
                in the ST order. In such a case, a reference to Vigilance Cell is
                not warranted at all.”
              9. It could thus be seen that this Court has held that documents of
       the pre-Constitution period showing the caste of the applicant and their
 D     ancestors have got the highest probative value. It has also been held that
       if an applicant is able to produce authentic and genuine documents of
       the per-Constitution period showing that he belongs to a tribal community,
       there is no reason to discard his or her claim as prior to 1950, there were
       no reservations provided to the Tribes included in the Constitution
 E     (Scheduled Tribes) Order.
               10. A perusal of the report of the Vigilance Committee itself would
       reveal that the appellant’s great grandfathers birth record show the caste
       as ‘Mana’. The said document relates to as early as 10th March 1924,
       while another document of 14th April 1926 shows as ‘Mani’. However,
 F     it is pertinent to note, and learned counsel for the parties also agree, that
       there is no caste named ‘Mani’. It is thus possible that there could be
       some mistake in writing when the caste was written. It is to be noted
       that original record is written in Marathi and not in English. As such,
       such an error is quite possible.

 G           11. We, therefore, find that there was no reason to discard the
       pre-Constitutional document of the period as early as 1924.
            12. Insofar as Affinity Test is concerned, this Court, in the case of
       Anand v. Committee for Scrutiny and Verification of Tribe Claims
       and Others3, has observed thus:
       3
 H         (2012) 1 SCC 113
PRIYA PRAMOD GAJBE v. THE STATE OF MAHARASHTRA                              1265
           AND OTHERS [B. R. GAVAI, J.]

   “22. It is manifest from the aforeextracted paragraph that the           A
   genuineness of a caste claim has to be considered not only on a
   thorough examination of the documents submitted in support of
   the claim but also on the affinity test, which would include the
   anthropological and ethnological traits, etc., of the applicant.
   However, it is neither feasible nor desirable to lay down an absolute
                                                                            B
   rule, which could be applied mechanically to examine a caste claim.
   Nevertheless, we feel that the following broad parameters could
   be kept in view while dealing with a caste claim:
   (i) While dealing with documentary evidence, greater reliance
   may be placed on pre-Independence documents because they
   furnish a higher degree of probative value to the declaration of         C
   status of a caste, as compared to post-Independence documents.
   In case the applicant is the first generation ever to attend school,
   the availability of any documentary evidence becomes difficult,
   but that ipso facto does not call for the rejection of his claim. In
   fact, the mere fact that he is the first generation ever to attend       D
   school, some benefit of doubt in favour of the applicant may be
   given. Needless to add that in the event of a doubt on the credibility
   of a document, its veracity has to be tested on the basis of oral
   evidence, for which an opportunity has to be afforded to the
   applicant;
   (ii) While applying the affinity test, which focuses on the              E
   ethnological connections with the Scheduled Tribe, a cautious
   approach has to be adopted. A few decades ago, when the tribes
   were somewhat immune to the cultural development happening
   around them, the affinity test could serve as a determinative factor.
   However, with the migrations, modernisation and contact with             F
   other communities, these communities tend to develop and adopt
   new traits which may not essentially match with the traditional
   characteristics of the tribe. Hence, the affinity test may not be
   regarded as a litmus test for establishing the link of the applicant
   with a Scheduled Tribe. Nevertheless, the claim by an applicant
   that he is a part of a Scheduled Tribe and is entitled to the benefit    G
   extended to that tribe, cannot per se be disregarded on the ground
   that his present traits do not match his tribe’s peculiar
   anthropological and ethnological traits, deity, rituals, customs, mode
   of marriage, death ceremonies, method of burial of dead bodies,
   etc. Thus, the affinity test may be used to corroborate the              H
1266             SUPREME COURT REPORTS                             [2023] 9 S.C.R.


 A             documentary evidence and should not be the sole criteria to reject
               a claim.”
               13. This court has held that while applying the Affinity Test which
       focuses on the ethnological connections with the Scheduled Tribe, a
       cautious approach has to be adopted. It has been held that a few decades
 B     ago, when the tribes were somewhat immune to the cultural development
       happening around them, the affinity test could serve as a determinative
       factor. However, with the migrations, modernisation and contact with
       other communities, these communities tend to develop and adopt new
       traits which may not essentially match with the traditional characteristics
       of the tribe. Hence, the affinity test may not be regarded as a litmus test
 C     for establishing the link of the applicant with a Scheduled Tribe. It has
       been held that the claim by a person belonging to the Scheduled Tribe
       cannot per se be disregarded on the ground that his present traits do not
       match his tribe’s peculiar anthropological and ethnological traits etc. It
       has been held that though the Affinity Test may be used to corroborate
 D     the documentary evidence, it should not be the sole criteria to reject the
       claim.
               14. It will further be apposite to refer to the recent judgment of
       this Court in the case of Mah. Adiwasi Thakur Jamat Swarakshan
       Samiti (supra), wherein this Court observed thus:-
               “25. Now, we come to the controversy regarding the affinity test.
 E
               In clause (5) of Paragraph 13 of the decision in the case of Kumari
               Madhuri Patil, (1994) 6 SCC 241, it is held that in the case of
               Scheduled Tribes, the Vigilance Cell will submit a report as regards
               peculiar anthropological and ethnological traits, deities, rituals,
               customs, mode of marriage, death ceremonies, methods of burial
 F             of dead bodies etc. in respect of the particular caste or tribe.
               Such particulars ascertained by the Vigilance Cell in respect of a
               particular Scheduled Tribe are very relevant for the conduct of
               the affinity test. The Vigilance Cell, while conducting an affinity
               test, verifies the knowledge of the applicant about deities of the
               community, customs, rituals, mode of marriage, death ceremonies
 G
               etc. in respect of that particular Scheduled Tribe. By its very nature,
               such an affinity test can never be conclusive. If the applicant has
               stayed in bigger urban areas along with his family for decades or
               if his family has stayed in such urban areas for decades, the
               applicant may not have knowledge of the aforesaid facts. It is
 H             true that the Vigilance Cell can also question the parents of the
 PRIYA PRAMOD GAJBE v. THE STATE OF MAHARASHTRA                                   1267
            AND OTHERS [B. R. GAVAI, J.]

        applicant. But in a given case, even the parents may be unaware           A
        for the reason that for several years they have been staying in
        bigger urban areas. On the other hand, a person may not belong
        to the particular tribe, but he may have a good knowledge about
        the aforesaid aspects. Therefore, Shri Shekhar Naphade, the
        learned senior counsel, is right when he submitted that the affinity
                                                                                  B
        test cannot be applied as a litmus test. We may again note here
        that question of conduct of the affinity test arises only in those
        cases where the Scrutiny Committee is not satisfied with the
        material produced by the applicant.”
        15. It could thus clearly be seen that this Court has held that if the
appellant has stayed in bigger urban areas along with his family for decades      C
or if his family has stayed in such urban areas for decades, the applicant
may not have knowledge of the aforesaid facts. This Court has, therefore,
held that the Affinity Test cannot be applied as a litmus test.
        16. Insofar as the contention with regard to area restriction is
concerned, it could be seen that Mana Tribe is found at Entry No.18 in            D
the Presidential Order with respect to the Scheduled Castes and
Scheduled Tribes for the State of Maharashtra. It could be seen that in
the said entries, there is no area restriction with regard to any of the
tribes mentioned therein. Per contra, in some of the entries, restriction is
imposed with regard to certain districts. As such, the findings of the
High Court with regard to area restrictions also, in our view, is not             E
sustainable in law. We find that the order of the Scrutiny Committee as
well as of the High Court need to be interfered with and quashed and set
aside on this short ground alone.
        17. In the result, the appeal is allowed. The order dated 12th
December 2017 passed by the Scrutiny Committee and the order dated                F
22nd December 2018 passed by the High Court of Bombay are quashed
and set aside. It is held and declared that the appellant belongs to ‘Mana’
Scheduled Tribe.
        18. Needless to state that the validity certificate shall be issued by
the Committee within a period of one month from today.                            G
        Pending application(s), if any, shall stand disposed of.

Divya Pandey                                                    Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)

                                                                                  H