1. Rule. Rule made returnable forthwith. Heard finally, by consent of the learned counsel appearing for the respective parties.
2. By the present petition, the petitioner is seeking quashing and setting aside of the invalidation order dated 17.01.2019, passed by the respondent No.1 - Scheduled Tribe Certificate Scrutiny Committee, Nagpur, invalidating the caste claim of the petitioner belonging to “Gond” Scheduled Tribe, enlisted at Sr. No. 18 in the Constitution Order, 1950.
3. The facts, in brief, are that the petitioner came to be appointed as a Police Constable on 12.01.2012 against a post reserved for the Scheduled Tribe category on the strength of a caste certificate dated 30.06.2007 certifying him to belong to "Gond" Scheduled Tribe. Upon his appointment, his tribe claim was referred for verification to the respondent No.1 – Scheduled Tribe Certificate Scrutiny Committee through the respondent No.2 by proposal dated 25.08.2010. Along with the proposal, the petitioner produced various documentary records, including pre-constitutional documents relating to his paternal lineage, wherein the caste of his grandfather was consistently recorded as "Gond". The petitioner also relied upon the service record of his grandfather, who had entered Government service in the year 1950, as well as other contemporaneous documents in support of his claim. The respondent No.1 caused an enquiry to be conducted through its Vigilance Cell. The vigilance enquiry did not record any adverse finding with regard to the genealogy furnished by the petitioner or the authenticity of the documents evidencing his tribal lineage. However, during the enquiry, certain documents pertaining to the petitioner's father were noticed wherein the religion was recorded as "Christian". The respondent No.1 also observed that the petitioner's grandfather had migrated from Chtrakuthora, District Singhbhoom in the erstwhile State of Bihar (now the State of Jharkhand) to Nagpur and further concluded that the petitioner had failed to establish his affinity with the Gond Scheduled Tribe. On the aforesaid grounds, the respondent No.1 invalidated the petitioner's tribe claim by order dated 17.01.2019. Aggrieved thereby, the petitioner has preferred the present writ petition.
4. Learned counsel Mr. S. R. Narnaware, appearing for the petitioner submitted that the impugned order suffers from patent non-application of mind and proceeds on an erroneous appreciation of the documentary evidence available on record. It is submitted that the respondent- Scrutiny Committee failed to assign due evidentiary value to the pre-constitutional documents produced by the petitioner, particularly the documents pertaining to his grandfather dating back to the years 1949–50 and the service record maintained from the year 1950, and the Kotwal Panji (death extract) of the year 1926 pertaining to Tanba Nage Gond, wherein the caste has consistently been recorded as "Gond". According to the learned counsel, these contemporaneous documents possess the highest probative value and could not have been discarded without assigning cogent and convincing reasons. It is further submitted that the vigilance enquiry has not doubted either the genealogy furnished by the petitioner or the genuineness of the documentary evidence supporting his tribal lineage. The documents submitted by the petitioner to the Respondent Committee are reproduced below:
5. Learned counsel further submitted that the respondent- Committee has committed a manifest error in treating certain entries describing the religion of the petitioner's father as "Christian" as determinative of the petitioner's tribe claim. It is contended that profession of Christianity does not, by itself, result in the loss of Scheduled Tribe status unless it is established that the claimant has ceased to retain the ethnic identity, customs, traditions and community acceptance of the tribe. It is further submitted that the respondent- Committee has not recorded any finding that the petitioner or his forefathers had severed their ties with the “Gond” Scheduled Tribe or had ceased to follow its customs and traditions. Learned counsel also contended that the finding regarding migration is wholly misconceived inasmuch as the petitioner's family has been ordinarily residing in the State of Maharashtra for several decades and the respondent–Committee has failed to examine the legal consequences of such migration in the context of the Presidential Orders issued under Article 342 of the Constitution. It is lastly submitted that the finding on the affinity test is wholly cryptic, as the impugned order neither discloses the anthropological or ethnological traits applied by the Committee nor records the basis on which the petitioner was held to have failed the said test. According to the learned counsel, the impugned order, therefore, deserves to be quashed and set aside.
6. Per contra, learned Assistant Government Pleader appearing for the respondents supported the impugned order and submitted that no interference is warranted in exercise of the writ jurisdiction of this Court. It is submitted that during the vigilance enquiry, several documents pertaining to the petitioner's father were collected, wherein the religion/caste column recorded "Christian", thereby creating serious doubt regarding the petitioner's claim of belonging to the Gond Scheduled Tribe. Learned Assistant Government Pleader further submitted that the petitioner had failed to establish his affinity with the customs, traditions and characteristics of the Gond Scheduled Tribe. It was also contended that the petitioner's grandfather had admittedly migrated from the erstwhile State of Bihar to the State of Maharashtra and that the respondent- Committee had duly considered the entire material available on record before arriving at its conclusion. According to the learned Assistant Government Pleader, the findings recorded by the respondent-Committee are based upon appreciation of evidence and do not warrant interference under Article 226 of the Constitution.
7. Having heard the learned counsel for the parties and upon perusal of the record, the following questions arise for consideration: (i) whether the entries recording the religion of the petitioner's father as "Christian" are by themselves sufficient to invalidate the petitioner's claim to belong to the Gond Scheduled Tribe? (ii) whether the migration of the petitioner's grandfather from the erstwhile State of Bihar disentitles the petitioner from claiming Scheduled Tribe status in the State of Maharashtra? (iii) whether the findings recorded by the respondent- Committee on the affinity test satisfy the legal requirements governing caste and tribe verification? and (iv) whether the respondent- Committee was justified in discarding the pre-constitutional documentary evidence relied upon by the petitioner?.
8. The foremost reason assigned by the respondent–Scrutiny Committee is that some of the school and revenue records pertaining to the petitioner's father describe his religion as "Christian". Proceeding on that basis, the Committee concluded that the petitioner cannot belong to the "Gond" Scheduled Tribe. The approach adopted by the Committee is fundamentally erroneous.
9. A Scheduled Tribe is not constituted merely on the basis of religion. The recognition of a tribe under Article 342 of the Constitution is founded upon its distinct ethnic, social, anthropological and cultural identity. Tribe status is acquired by birth and does not stand extinguished merely because a member professes a different religion. What is legally relevant is whether the individual continues to retain the tribal identity, social characteristics, customs, traditions and community acceptance notwithstanding the profession of another religion.
10. The Hon'ble Supreme Court in State of Kerala and another v. Chandramohanan, reported in (2004) 3 SCC 429, has authoritatively held that conversion to Christianity does not ipso facto result in the loss of Scheduled Tribe status. Whether a person continues to belong to the tribe depends upon the facts of each case, particularly whether he continues to follow the customs, traditions and social characteristics of the tribal community and continues to be accepted by the said community. The Court has categorically held that religion alone cannot be treated as the decisive factor. Paragraph Nos. 16, 17 and 20 of the said judgment reproduced hereinbelow:
“16. Before a person can be brought within the purview of the Constitution (Scheduled Tribes) order, 1950, he must belong to a Tribes. A person for the purpose of obtaining the benefits of the Presidential Order must fulfill the condition of being a member of a Tribe and continue to be a member of the Tribe. If by reason of conversion to a different religion a long time back, he/ his ancestors have not been following the customs, rituals and other traits, which are required to be followed by the members of the Tribe and even had not been following the Customary Laws of Succession, Inheritance, Marriage etc., he may not be accepted to be a member of a Tribe. In this case, it has been contended that the family of the victim had been converted about 200 years' back and in fact the father of the victim married a woman belonging to a Roman Catholic, wherefrom he again became a Roman Catholic. The question, therefore, which may have to be gone into is as to whether the family continued to be a member of a Scheduled Tribe or not such a question can be gone into only during trial.
17. In CM. Arumugam (supra), this Court held as under: "10 A caste is more a social combination than a religious group. But since, as pointed out by Rajamannar, C.J. in C. Michael v. S. Venkateswaran, ethics provides the standard for social life and it is founded ultimately on religious beliefs and doctrines, religion is inevitably mixed up with social conduct and that is why caste has become an integral feature of Hindu society. But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion. It is no doubt true, and there we agree with the Madras High Court in G. Michael's case that the general rule is that conversion operates as an expulsion from the caste, or, in other words, the convert ceases to have any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be "regarded by the other members of the caste as belonging to their fold. But ultimately it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism. If the structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste. This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste. When an argument was advanced before the Madras High Court in G. Michael's case that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being member of the caste, but has also been considered so by other members of the caste who had not been converted, Rajamannar C.J., who it can safely be presumed, was familiar with the customs and practices prevalent in South India, accepted the position "that instances can be found in which in spite of conversion the caste distinctions might continue", though he treated them as exceptions to the general rule.
11. The High Court of Andhra Pradesh also affirmed in Kothapalli Narasavva v. Jammana Jogi, that ‘notwithstanding conversion, the converts whether an individual or family or group of converts, may like to be governed by the law by which they were governed before they became converts..... and the community to which they originally belonged may also continue to accept them within their fold notwithstanding conversion.....
….
20. We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion person ceases to be a member of scheduled tribe, but the question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as such a question would depend upon the fact of each case. In such a situation, it has to be established that a person who has embraced another religion is still suffering from social disability and also following the customs and tradition of the community, which he earlier belonged to. Under such circumstances, we set aside the order under appeal and remit the same to the Sessions Court, Palakkad, to proceed in accordance with law.”
The relevant observations of the Hon'ble Supreme Court extracted hereinabove leave no manner of doubt that the enquiry is not confined to the religion professed by the claimant but extends to the continued existence of tribal identity.
11. In the present case, except referring to certain entries describing the petitioner's father as "Christian", the respondent- Committee has not recorded any finding that the petitioner or his forefathers ceased to be members of the Gond Scheduled Tribe or that they abandoned the customs, traditions, social practices or cultural characteristics of the said tribe. On the contrary, the statements of the petitioner's elderly relatives recorded during the vigilance enquiry consistently affirm that the petitioner belongs to the Gond Scheduled Tribe. The vigilance report also does not record any adverse finding regarding the petitioner's genealogy or the authenticity of the tribal lineage. The Committee, therefore, treated the entries relating to religion as conclusive proof against the petitioner, which is contrary to the law laid down by the Hon'ble Supreme Court.
12. Equally significant is the failure of the respondent-Committee to accord due weight to the documentary evidence produced by the petitioner. The petitioner has relied upon pre-constitutional documents including the record of his grandfather of the year 1949–50 and the Kotwal Panji (Death Extract) of the year 1926, wherein the caste has been consistently recorded as "Gond". These documents are contemporaneous in nature and originate from a period anterior to the Constitution (Scheduled Tribes) Order, 1950. Such documents ordinarily possess high probative value as they came into existence much prior to the commencement of reservation jurisprudence and are generally free from any motive to secure future benefits.
13. The Constitution Bench of the Hon'ble Supreme Court in Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti and subsequently in Anand v. Committee for Scrutiny and Verification of Tribe Claims, (2012) 1 SCC 113, has consistently held that greater evidentiary value is required to be attached to old and pre-constitutional documents and that the affinity test serves only as a corroborative aid. The Scrutiny Committee is expected to undertake a holistic appreciation of the documentary evidence and cannot discard contemporaneous documents without assigning cogent and convincing reasons.
14. In the present case, the impugned order neither disputes the genuineness of the pre-constitutional documents nor records any reason why they deserve to be discarded. Such an omission strikes at the very foundation of the decision-making process.
15. The second ground assigned by the respondent-Committee is that the petitioner's grandfather migrated from District Singhbhoom in the erstwhile State of Bihar (now Jharkhand) to Nagpur in the year 1950. In our opinion, the said reasoning is equally unsustainable. The Committee has not recorded any finding that the petitioner's tribe "Gond" is not recognised as a Scheduled Tribe in the State of Maharashtra. Nor has it examined the constitutional consequences of such migration with reference to the Presidential Orders issued under Article 342 of the Constitution. The entire discussion is confined to the mere factum of migration.
16. The record indicates that the petitioner's grandfather entered Government service in Nagpur in the year 1950 and that the petitioner's family has been ordinarily residing in the State of Maharashtra for several decades thereafter. The petitioner himself was born, educated and appointed in service in Maharashtra. These facts have not been disputed by the respondents. Mere migration of the ancestors cannot, in the absence of any further legal enquiry, constitute a valid ground for rejecting the tribe claim. The Committee has not demonstrated as to how such migration disentitles the petitioner from claiming the status of "Gond" Scheduled Tribe in Maharashtra. The finding, therefore, is founded upon conjectures rather than legal principles.
17. The final ground relates to the affinity test. The findings recorded by the Committee on this aspect are entirely unreasoned.The affinity test is intended only to supplement the documentary evidence and cannot supplant reliable documentary evidence, particularly pre-constitutional documents. Where dependable documentary evidence exists, failure to answer certain questions relating to customs or traditions cannot by itself be decisive.
18. In the present case, the Committee has merely observed that the petitioner failed the affinity test without indicating the anthropological, ethnological or cultural characteristics of the Gond Scheduled Tribe which were put to the petitioner, the answers furnished by him or the reasons why such answers were found unsatisfactory. A bald conclusion without supporting reasons cannot satisfy the requirement of a reasoned quasi-judicial order. The finding, therefore, suffers from complete non-application of mind.
19. The impugned order further reveals that instead of appreciating the evidence in its entirety, the Committee adopted a fragmented approach. The oldest documentary evidence supporting the petitioner's claim, the absence of adverse findings in the vigilance report regarding genealogy, the oral statements of close blood relatives and the absence of any finding regarding severance of tribal identity have all been ignored. Conversely, isolated entries describing religion as "Christian" have been treated as determinative. Such an approach is inconsistent with the settled principles governing verification of Scheduled Tribe claims and renders the decision legally unsustainable.
20. For all the aforesaid reasons, we are satisfied that the respondent- Scrutiny Committee has misdirected itself in law by treating religious entries as conclusive, by assigning undue importance to the alleged migration without examining its legal consequences, by mechanically applying the affinity test and by ignoring the pre-constitutional documentary evidence possessing the highest probative value. The impugned order thus suffers from non-application of mind, improper appreciation of evidence and failure to apply the settled legal principles governing verification of Scheduled Tribe claims. The order of invalidation, therefore, cannot be sustained and deserves to be quashed and set aside.
21. On the overall consideration of the material on record, we are satisfied that the petitioner has successfully established his claim of belonging to "Gond" Scheduled Tribe. The order dated 17.01.2019 passed by the respondent No.1 - Scheduled Tribe Certificate Scrutiny Committee, Nagpur in Case No. II/64/31/2010 invalidating the petitioner's tribe claim is hereby quashed and set aside. Respondent- Committee, Nagpur is directed to issue a validity certificate in favour of the petitioner certifying him as belonging to "Gond" Scheduled Tribe, within a period of four weeks from the date of receipt of a copy of this judgment. Accordingly, the present Writ petition is allowed.
22. Rule is made absolute in aforesaid terms. No order as to costs.
II/64/31/2010 invalidating the petitioner's tribe claim is hereby quashed and set aside. Respondent- Committee, Nagpur is directed to issue a validity certificate in favour of the petitioner certifying him as belonging to "Gond" Scheduled Tribe, within a period of four weeks from the date of receipt of a copy of this judgment. Accordingly, the present Writ petition is allowed.
