The relevance of the affinity test in determining the genuineness of a caste claim and the entitlement to protection of employment based on the principles laid down by the Full Bench of the Court.

B.P. DHARMADHIKARI, J.

Heard Shri Ahirrao, learned counsel for the petitioner and Shri Joshi, learned AGP for the respondents.

2. The petitioner has questioned the order dated 10.02.2003 passed by Respondent No. 1 – Scrutiny Committee, invalidating his caste claim as belonging to Thakur, Scheduled Tribe. This Court has issued notice in the matter on 02.05.2003 and protected his employment. It is not in dispute that the petitioner is born on 14.12.1959 and reaches the age of superannuation in the next year.

3. Shri Ahirrao, learned counsel, submits that entry 44 in the Presidential Scheduled Tribe Order envisages Thakur, Scheduled Tribe and hence distinction as higher caste Thakur and Thakur, Scheduled Tribe as used by Respondent No. 1 –Scrutiny Committee in the impugned order is unsustainable. He further contends that all documents produced by the petitioner to substantiate his caste claim are found genuine and have mentioned caste as Thakur. In view of these old documents which are of preindependence period, use of affinity test to discard those documents is not warranted. He draws support from the judgment of the Hon'ble Apex Court in the case of Anand vs. Committee for Scrutiny and Verification of Tribe Claims & Ors., reported at 2011 (6) Mh. L.J. 919 and the Division Bench judgment of this Court dated 15.01.2016 in Writ Petition No.4210 of 2000 (Sudhirkumar Bhaurao More vs. State of Maharashtra thr. its Secretary, Department of Social Welfare & Ors.).

4. Shri Joshi, learned AGP is relying upon the reply affidavit. He states that the Scrutiny Committee has specifically found that caste with same nomenclature appears in Scheduled Tribe as also in upper caste. This fact is not in dispute. Hence, the Scrutiny Committee cannot go only by the documents and, therefore, has relied upon affinity test. He states that the judgment of the Hon'ble Apex Court in the case of Anand vs. Committee for Scrutiny and Verification of Tribe Claims & Ors., (supra) does not overrule relevance of affinity test in such circumstances. He, therefore, prays for dismissal of writ petition.

5. In reply, Shri Ahirrao, learned counsel reiterates his contentions. Without prejudice and by way of abundant precautions or in the alternative he submits that as the petitioner has joined employment way back in the year 1983, he is entitled to protection of his employment in view of Full Bench judgment of this Court in the case of Arun Vishwanath Sonone vs. State of Maharashtra & Ors., 2015 (1) Mh.L.J. 457 (FB).

6. With the assistance of the learned counsel, we have perused the impugned order. The impugned order no doubt finds that there are four documents of preindependence period in which caste has been recorded as Thakur. Thereafter it refers to Vigilance Cell inquiry and statement of Smt. Shakuntalabai Shriram Pawar, who according to the petitioner, is motherinlaw.

The affinity test has been relied upon on the basis of said statement. In para 15(B), Scrutiny Committee has found that the test of old documentary entries cannot be applied in the facts before it because in upper caste also, the same caste entries are found to be recorded. Thus, similarity in nomenclature warranted use of affinity test. The fact that the caste with same name appears in upper caste is not in dispute.

7. The judgment of the Hon'ble Apex Court in the case of Anand vs. Committee for Scrutiny and Verification of Tribe Claims & Ors., (supra) in para 18 observes that genuineness of a caste claim needs to be considered not only on a thorough examination of documents submitted in support of the claim but also on the affinity test which would include the anthropological and ethnological traits etc. of the candidate. The Hon'ble Apex Court further states that it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim.

8. In facts before the Division Bench of this Court, which deciding Writ Petition No. 4210 of 2000, the co