JUDGMENT :

B.R. GAVAI, J.

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 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 Academic Year 2016-17 against the seat reserved for Scheduled Tribe. The appellant claimed that she belongs to ‘Mana’ Scheduled Tribe. As 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.

(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 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 vs. State of Maharashtra and Others, 2023 SCC Online SC 326 submits that once the pre-Constitutional 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 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 a Full Bench judgment of the High Court of Bombay in the case of Ku. Yogita vs. State of Maharashtra and Others, Writ Petition No. 6103 of 2010 decided on 15.09.2016 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.

7. Shri Cheema, learned counsel appearing for the intervenors, supports the arguments advanced by Shri Varma, learned counsel for the State of Maharashtra.

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, (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 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 ancestors have got the highest probative