Allowed

D.Partheeban v. State Level Scrutiny Committee-Ii

Madras HC22 Mar 2024WP/20421/2021

Case brief

AI extract

What is this about?

Petitioner's Scheduled Tribe certificate was invalidated by the Scrutiny Committee based on anthropologists' reports, despite a favourable Vigilance Cell police report, without independently weighing his documents. The Madras High Court set aside the order and remanded for fresh enquiry with opportunity to cross-examine.

What did the court decide?

Impugned order dated 26.12.2019 set aside; matter remanded to State Level Scrutiny Committee for fresh enquiry with opportunity to cross-examine anthropologists; orders within 16 weeks.

D.Partheeban Vs State Level Scrutiny Committee-Ii — Caste Atrocities | Madras HC (2024)

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W.P.No.20421 of 2021

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.03.2024

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CORAM:

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THE HON'BLE MR. JUSTICE S.S.SUNDAR

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and

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THE HON'BLE MR.JUSTICE N.SENTHILKUMAR

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W.P.No.20421 of 2021

D.Partheeban

Petitioner

vs.

1.State Level Scrutiny Committee-II, Rep by its Chairman & Secretary to the Government, Adi Dravidar and Tribal Welfare Department,

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Fort St.George, Chennai-600 009.

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2.The Director of Tribal Welfare, Chepauk, Chennai-600 005.

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3.The District Collector, Thiruvallur District, Thiruvallur.

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4.The Additional Commissioner, Chennai Outer Commissionerate, Office of the Commissioner of GST & Central Excise, Newry Towers, No.2054-I, Second Avenue, Anna Nagar, Chennai-600 040. ..

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Anna Nagar, Chennai-600 040. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the entire records ending with the first respondent's proceedings No.7511/ CV4(I)/2008-9 dated 26.12.2019 and quash the same and direct the first respondent to conduct an enquiry afresh giving sufficient opportunity to the petitioner to defend his case with all supporting documents and statements and witnesses to establish the petitioner's claim as belonging to the HinduKurumans Scheduled Tribe Community.

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https://www.mhc.tn.gov.in/judis

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W.P.No.20421 of 2021

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For Petitioner For Respondents

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: Mr.Duraikkan S. Phillip : Mrs.V.Yamuna Devi, Special Government Pleader for R1 to R3 Mr.Umesh Rao, Senior Standing Counsel Assisted by Mr.J.Vasu, Standing Counsel for R4

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O R D E R

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(Order of the Court was made by S.S.Sundar, J.) This writ petition has been filed to quash the first respondent's

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proceedings No.7511/ CV-4(I)/2008-9 dated 26.12.2019 and to direct the first respondent to conduct an enquiry afresh giving sufficient opportunity to the petitioner to defend his case with all supporting documents and statements

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and witnesses to establish the petitioner's claim as belonging to the HinduKurumans, a Scheduled Tribe Community.

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The petitioner states that he belongs to Kurumans community, which

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is listed under Scheduled Tribe community. It is the specific case of the petitioner that petitioner's father Deva had served in Government service as belonging to the same community as a Scheduled Tribe. The petitioner's younger brother by name B.Venkatachalam and younger sister by name B.Gowri are also stated to be employed in Government service as belonging to Scheduled Tribe community. The petitioner was appointed on 08.07.2005

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https://www.mhc.tn.gov.in/judis

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as Havildar in the office of the Central Excise Department on the basis of the communal status as Scheduled Tribe. It appears that the communal status of the petitioner was under scrutiny by the first respondent, at the instance of the fourth respondent / employer of the petitioner.

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This is a peculiar case where the anthropologist has given a report against the petitioner on an analysis of anthropological and ethnological traits, deities, rituals, customs, way of life etc. and with the information gathered on enquiry of the petitioner. The anthropologist, who is also a member of the District Vigilance Cell, gave opinion that the petitioner's claim that he belongs to Kurumans - Scheduled Tribe community is not genuine by recording that the petitioner had not expressed his culture in a patterned form. Again, the anthropologist, who is a member of the State Level Scrutiny Committee, gave similar opinion on the basis of the assessment of cultural traits of the community at the emperical level. According to the member of the State Level Scrutiny Committee, following the ethnograph method by looking into origin, family marriage, region and rituals, food habits, life style ceremonies etc., he has given his enquiry report. It appears that the anthropologist made an enquiry on the petitioner and found that he was unable to give statement to

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support his claim. The anthropologist appears to have given opinion not on

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the basis of field inspection but by questioning the petitioner, who is away from his native for a long time. The question and answers and the statement

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of the petitioner, as recorded during enquiry is not revealed from this report.

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The Hon'ble Supreme Court in Anand v. Committee for Scrutiny

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and Verification of Tribe Claims and Others [(2012) 1 SCC 113] has held that affinity test though can be used to corroborate the documentary evidence, should not be the sole criteria to reject a claim. It is to be noted that the Hon'ble Supreme Court has held that while applying the affinity test which focuses on the ethnological connections with the Scheduled Tribe, a cautions approach has to be adopted. It has been held that 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 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.

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The same view was also expressed by the Hon'ble Supreme Court in Mah.Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra and Others reported in 2023 SCC Online SC 326.

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In a recent judgment in Priya Pramod Gajbe v. The State of Maharashtra [2023 LiveLaw (SC) 591] , the Hon'ble Supreme Court has observed that by its very nature, such an affinity test can never be conclusive and reiterated that the affinity test cannot be applied as a litmus test.

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The report of the Vigilance Cell by the Deputy Superintendent of Police, however is contrary. On the basis of the spot enquiry and the documents produced by the petitioner, the Deputy Superintendent of Police has satisfied and has given a report concluding that the petitioner belongs to Kurumans community, which is a Scheduled Tribe community. On the basis of the reports of the two anthropologists, who are member of the Vigilance Cell and member of the State Level Scrutiny Committee respectively, the first respondent has concluded that the certificate obtained by the petitioner is not genuine. The State Level Scrutiny Committee has not independently

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https://www.mhc.tn.gov.in/judis

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considered the documents that were filed by the petitioner and has enquired about the genuineness of the documents produced by the petitioner pertaining to his father and blood relatives.

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In view of the judgment of the Hon'ble Supreme Court and the conflicting views by the Vigilance Committee and the Anthropologist, this Court finds that the State Level Scrutiny Committee at least ought to have weighed the veracity and reliability of the documents filed by the petitioner. In such circumstances, this Court is of the view that the matter has to be reconsidered afresh by the State Level Scrutiny Committee after giving opportunity of hearing to the petitioner. The petitioner is permitted to cross examine the anthropologists and opportunity shall be granted to the petitioner to let in evidence at least to prove the documents which are already filed.

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Hence, the impugned order of the first respondent in proceedings No.7511/ CV-4(I)/2008-9 dated 26.12.2019 is set aside and the matter is remanded to the State Level Scrutiny Committee for fresh consideration after giving opportunity to the petitioner and after holding enquiry in the light of the judgments referred to supra and the documents which are filed by the

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petitioner and pass orders within a period of sixteen weeks from the date of

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receipt of a copy of this order.

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The Writ Petition stands allowed and disposed of with the above

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directions. No costs.

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[S.S.S.R., J.] [N.S., J.] 22.03.2024

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Index : Yes / No Internet : Yes / No Jvm

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1.The Chairman & Secretary to the Government, State Level Scrutiny Committee-II, Adi Dravidar and Tribal Welfare Department, Fort St.George, Chennai-600 009.

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2.The Director of Tribal Welfare, Chepauk, Chennai-600 005.

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3.The District Collector, Thiruvallur District, Thiruvallur.

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4.The Additional Commissioner, Chennai Outer Commissionerate, Office of the Commissioner of GST & Central Excise, Newry Towers, No.2054-I, Second Avenue, Anna Nagar, Chennai-600 040

S.S.SUNDAR. J

and

https://www.mhc.tn.gov.in/judis

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W.P.No.20421 of 2021

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N.SENTHILKUMAR, J.

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