Point of law : Muslim - Caste certificate - significance of affinity test - in the case of the Muslim community there is no practice of mentioning the caste/sub-caste.

JUDGMENT :

ABHAY AHUJA, J.

1. Rule. With consent of the counsel for the parties, rule made returnable forthwith and heard finally.

2. By this petition, filed under Article 226 of the Constitution of India, petitioner is challenging the legality and validity of the judgment and order dated 14th December 2017 passed by the District Caste Certificate Scrutiny Committee, Kolhapur viz. Respondent No.2, rejecting/invalidating the caste claim of the petitioner as Gavali, Nomadic Tribe (B).

3. Brief facts leading upto this petition are that, petitioner who claims to belong to the Gavali community by birth applied to the Sub-Divisional Officer, Ichalkaranji for grant of caste certificate and was granted the same on 9th June 2010. Thereafter, petitioner intending to seek higher education, made an application before the second respondent-committee for verification of his caste certificate through his junior college alongwith the necessary documents, evidence in support of his claim to the Gavali, N. T. (B). It is stated that at the time of filing this petition, petitioner was pursuing biotechnology degree course in a reserved category seat in N.T. (B) in respondent no. 4-college viz. Kolhapur Institute of Technologys College of Engineering and Technology, Kolhapur.

4. Respondent No.2-Committee handed over the case of petitioner to the Vigilance Cell for conducting the caste certificate and home inquiry after which the police inspector of Vigilance Cell conducted inquiry and recorded statements of local persons at the petitioner’s place of residence and submitted report to respondent no. 2-Committee. The Committee issued a show cause notice to petitioner based on the said vigilance cell report which was replied to by the petitioner. Thereafter, without considering the vigilance cell report, the affinity test, the evidence of agreements for milk supply by petitioner’s cousin grandfather, the respondent no. 2-committee rejected petitioner’s claim to Gavali, NT (B).

5. It is the case of petitioner that petitioner belongs to Gavali caste and that the family of the petitioner was engaged in the traditional occupation of selling milk. It is submitted that reputed local persons around petitioner’s place of residence testified petitioner’s family carrying on the traditional occupation of selling milk as well as the traits rituals, rites and traditions of petitioner’s family resembling those of Gavali Nomadic tribe. Petitioner also submitted documentary evidence, in the nature of agreement in respect of petitioner’s cousin grand-father supplying milk to certain hotels from the year 1958 was submitted to the caste scrutiny committee.

6. Learned counsel for petitioner submits that all these vital pieces of evidence have been rejected by the caste scrutiny committee primarily on the ground that no reference to caste entries was found in the documents except description as Muslim or Musalmaan. Learned counsel for petitioner submits that it is settled law as held by this Court in Writ Petition No. 10577 of 2013 that in the case of Muslims, the affinity test is necessary as there is no likelihood to be found in caste entries in their documents and therefore, affinity to Gavali community as testified in the statements recorded in the inquiry report dated 22nd February 2017 submitted by the Vigilance Cell to the respondent no.2-committee as well as the agreements dated 21st September 1959 and 17th April 1958 was conclusive to show that the petitioner’s cousin grandfather was selling milk to the hotels etc. and ought to have been considered by the Scrutiny Committee. Learned counsel further submits that as per law laid down by the Hon’ble Supreme Court in the case of Madhuri Patil Vs. Additional Commissioner, Tribal, (1994 SCC (6) 241), the respondent no.2-Committee ought to have directed the vigilance officer to record statement of petitioner or his family members with respect to the affinity towards the Gavali community as is required when there are no document