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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.5449 of 2013
Shankar s/o Prakash Nannaware,
Aged about 21 years,
Occupation - Student,
R/o Bhagwanpur,
Post - Adyal,
Tah. Brahmapuri,
Distt. Chandrapur. ... Petitioner
Versus
1. The Scheduled Tribe Certificates
Scrutiny Committee,
Gadchiroli, Division Nagpur,
through its Chairman,
Office at Complex Area,
Near Zilla Parishad Sankul,
Gadchiroli,
Tah. & Distt. Chandrapur.
2. Tribal Development Department,
through its Secretary,
Mantralaya,
Mumbai-32.
3. The State of Maharashtra,
through its Secretary,
Education Department,
Mantralaya,
Mumbai-32.
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4. The Director,
Maharashtra State Education
Research & Training Institute,
M.S., Pune.
5. The Principal,
Barister Rajabhau Khobragade
Adhgyapak Vidyalaya (D.T.Ed.),
Brahmapuri,
Tah. Bramhapuri,
Distt. Chandrapur.
6. The Deputy Director of Education,
Nagpur Division, Sadar, Nagpur,
Tahsil and District Nagpur. ... Respondents
Shri P.P. Dhok, Advocate for Petitioner.
Shri M.K. Pathan, Assistant Government Pleader for Respondent
Nos.1 to 4 and 6.
Coram : R.K. Deshpande & M.G. Giratkar, JJ.
Date : 15th December, 2017 Oral Judgment (Per R.K. Deshpande, J.) :
1. The challenge in this petition is to the order dated 16-4-2013 passed by the Scheduled Tribe Certificate Scrutiny Committee, Gadchiroli, Division Nagpur, invalidating the caste claim of the petitioner for 'Mana, Scheduled Tribe', which is an entry at Serial No.18 in the Constitution (Scheduled ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 3 wp5449.13.odt Tribes) Order, 1950 and cancelling and confiscating the caste certificate dated 15-9-2008 issued by the Sub-Divisional Officer, Bramhapuri, District Chandrapur, and produced by the petitioner for validation.
2. Before the said Committee, the petitioner produced total six documents on record in support of his claim for 'Mana, Scheduled Tribe', which is an entry at Serial No.18 in the Constitution (Scheduled Tribes) Order, 1950. The Police Vigilance Cell conducted the home enquiry in respect of the three documents and found the said documents to be genuine. The oldest document produced on record is the revenue record of the year 1921-22 in the name of Dhrama, the great grandfather of the petitioner, in which the caste 'Mana' was entered. The next document is the extract of the school admission register in the name of Shamrao, the uncle of the petitioner, wherein the caste 'Mana' was entered on 12-5-1961. The other documents subsequent to the said period also indicate the caste 'Mana' and there is not even a single document ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 4 wp5449.13.odt showing the caste of the paternal/blood relations other than 'Mana'. Significantly, the caste validity certificate dated 6-3-2007 issued in the name of Mahipal, the cousin brother of the petitioner, is also produced on record, validating his claim for 'Mana, Scheduled Tribe'.
3. In para 14 of its order, the Committee holds that so far as the documentary evidence placed on record is concerned, the caste of the petitioner and his forefathers is consistently recorded as 'Mana' in the school and revenue record during the period from 1921-22 to 1999. However, it rejects the claim of the petitioner by applying the affinity test and recording the reasons as under :
(a) that 'Mana' community was included in the list of Scheduled Tribes in relation to the State of Maharashtra for the first time in the year 1960, that too in the specified area only, and the petitioner has failed to establish that he or his forefathers hail from the said area and migrated to the present place of their residence, from the said specified scheduled ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 5 wp5449.13.odt area,
(b) that there are non-tribal communities like 'Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana', 'Mani'/'Mane', etc., and the petitioner has failed to satisfy crucial affinity test to establish that he belongs to 'Mana, Scheduled Tribe', which is an entry at Serial No.18 in the Constitution (Scheduled Tribes) Order, 1950,
(c) that in the year 1967, 'Mana' community was included in the list of Other Backward Classes at Serial No.268 and later on in the list of Special Backward Classes at Serial No.2 in relation to the State of Maharashtra, and
(d) that the documents produced simply indicate the caste as 'Mana' and not 'Mana, Scheduled Tribe'.
4. In the decision of this Court in Writ Petition No.3308 of 2013 [Gajanan s/o Pandurang Shende v. The Head-Master, Govt. Ashram School, Dongargaon Salod, Tah. Sindewahi, Distt. Chandrapur, and others] decided on 8-11-2017, we have dealt ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 6 wp5449.13.odt with all the aforesaid reasoning and we point out below what we have held in the said decision :
5. In para 5 of the decision in Gajanan's case, we have held that the Committee was wrong in holding that 'Mana' community was included in the list of Scheduled Tribes Order in relation to the State of Maharashtra for the first time in the year 1960. We have also held that in fact, the said community was included in the said Order in the year 1956.
6. On the aspect of original place of residence and migration, we have held in para 7 of the said decision as under :
"7. ... The Act No.108 of 1976 was published in the gazette on 29-9-1976, and the area restriction of Scheduled Tribes in the State of Maharashtra for all the tribes, including 'Mana' tribe, was deleted. The members of different tribes or communities in the State of Maharashtra included in Entry No.18, are treated and conferred with the status of recognized Scheduled Tribes, irrespective of their place of residence in the ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 7 wp5449.13.odt State. The net result of such deletion was that the two- fold requirements of ordinary place of residence in tribal areas and migration to non-tribal areas, was done away with."
7. Relying upon the decision of the Apex Court in the case of Jaywant Dilip Pawar v. State of Maharashtra & Ors., delivered in Civil Appeal No.2336 of 2011 on 8-3-2017, we have held in Gajanan's case that the petitioner was not required to establish that either his forefathers were the ordinary residents of the place meant for the tribals in the Constitution (Scheduled Tribes) Order prevailing prior to 1976 or that his forefathers migrated from the said area to the present place of residence. We have also held that the Committee was in error in taking such a view.
8. On the other aspect that there are non-tribal communities like 'Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana', 'Mani'/'Mane', etc., we have considered the impact of the ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 8 wp5449.13.odt Constitution Bench decision of the Apex Court in the case of State of Maharashtra v. Milind, reported in 2001(1) Mh.L.J. 1, which overruled earlier decision in the case of Dina v. Narayansing, reported in 38 ELR 212. We have held in para 11 of the decision in Gajanan's case as under :
"11. ... The effect of overruling of the decision in Dina's case is that the entry 'Mana', which is now in the cluster of tribes at Serial No.18 in the Constitution (Scheduled Tribes) Order, has to be read as it is and no evidence can be let in, to explain that entry 'Mana' means the one which is either a 'sub-tribe of Gond' or synonym of 'Gond' and/or it is not a sub-tribe either of 'Maratha' or of any other caste or tribe."
In para 12 of the said decision, we have held as under :
"12. ... To hold that 'Mana' in Entry No.18 in the Constitution (Scheduled Tribes) Order does not include 'Kashtriya Badwaik Mana', 'Maratha Mana', 'Kunbi Mana', etc., would amount to permitting evidence to be ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 9 wp5449.13.odt let in to exclude certain 'Mana' communities from the recognized Scheduled Tribe. Such tinkering with the Presidential Order is not permissible. Once it is established that 'Mana' is a tribe or even a sub-tribe, it is not permissible to say that it is not a recognized Scheduled Tribe in Entry No.18 of the Order. The Scrutiny Committee has failed to understand such effect of overruling the decision in Dina's case."
In view of the Constitution Bench decision in Milind's case, we hold that it is not permissible to invoke the affinity test to exclude certain 'Mana' communities from the recognized Scheduled Tribe.
9. On the aspect of inclusion of 'Mana' communities in the lists of Other Backward Classes and Special Backward Classes, we have relied upon the decision of this Court in Mana Adim Jamat Mandal v. State of Maharashtra, reported in 2003(3) Mh.L.J. 513, which is confirmed by the Apex Court in its decision in the case of State of Maharashtra v. Mana Adim Jamat Mandal, reported in (2006) 4 SCC 98. We have held in paras 13 and 14 ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 10 wp5449.13.odt of Gajanan's case as under :
"13. ... This view has been confirmed by the Apex Court in the case of State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, reported in (2006) 4 SCC 98, and it is specifically held that 'Mana' is a separate Scheduled Tribe by itself included in Entry No.18 of the Constitution (Scheduled Tribes) Order and it is not a sub-tribe of 'Gond'."
"14. This Court has held and it is confirmed by the Apex Court in the aforesaid decisions that even if it is assumed that there was a separate entity, which is called as 'Mana' in Vidarbha Region, which has no affinity with 'Gond' tribe, that community would also fall within the scope of the Scheduled Tribes Order by virtue of the Amendment Act, 1976, and the State Government was not entitled to issue orders or circulars or resolutions contrary thereto. It holds that since under Entry 18, 'Manas' are specifically included in the list of Scheduled Tribes in relation to the State of Maharashtra, 'Manas' throughout the State must be deemed to be Scheduled Tribe by reason of provisions of the Scheduled Tribes Order. Once 'Manas' throughout ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 11 wp5449.13.odt the State are entitled to be treated as a Scheduled Tribe by reason of the Scheduled Tribes Order as it now stands, it is not open to the State Government to say otherwise, as it has purported to do in various Government Resolutions. It further holds that it is not open to the State Government or, indeed to this Court to embark upon an enquiry to determine whether a section of 'Manas' was excluded from the benefit of the Scheduled Tribes Order."
The Apex Court has held that 'Mana' is a separate Scheduled Tribe in Entry No.18 and it is not a sub-tribe of 'Gond'. The Division Bench of this Court has held that it is not open to the State Government or indeed to this Court to embark upon an enquiry to determine whether a section of 'Manas' was excluded from the benefit of Scheduled Tribes Order. In para 15 of Gajanan's case, we have held that the Committee was clearly in error in holding that 'Mana' community was included in the list of Other Backward Classes and later on in the list of Special Backward Classes, and though the petitioner has established that he belongs to 'Mana' community, it is not established that he ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 12 wp5449.13.odt belongs to 'Mana Scheduled Tribe'.
10. On the aspect of carving out a distinction that the documents of pre-Independence, produced on record, simply indicating the caste as 'Mana' and not 'Mana Scheduled Tribe', we have relied upon the decision of the Apex Court in the case of E.V. Chinnaiah v. State of Andhra Pradesh, reported in 2004(9) SCALE 316. We have held in para 18 of Gajanan's case as under :
"18. Applying the law laid down in E.V. Chinnaiah's case, it has to be held in the facts of the present that once it is clear that 'Mana' community is included in entry No.18 of the Constitution (Scheduled Tribes) Order, it has to be read as it is, representing a class of 'Mana' as a whole and it is not permissible either for the Executive or for the Scrutiny Committee to artificially sub-divide or sub-classify 'Mana' community as one having different groups, like 'Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana', 'Mani/Mane', etc., for the purposes of grant of benefits available to a ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 13 wp5449.13.odt recognized Scheduled Tribe. To exclude such persons from the entry 'Mana', to be recognized as Scheduled Tribe, amounts to interference, re-arrangement, re- grouping or re-classifying the caste 'Mana', found in the Presidential Order and would be violative not only of Article 342, but also of Article 14 of the Constitution of India. The classification of entry 'Mana" in different categories, like 'Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana', 'Mani'/'Mane', etc., for the purpose of conferring a status as a recognized Scheduled Tribe is artificial and without any authority. The Committee has, therefore, committed an error in rejecting the claim by holding that the documents produced simply indicate the caste 'Mana' and not 'Mana, Scheduled Tribe'."
We have held that after following the decision in E.V. Chinnaiah's case that 'Mana' community throughout the State is a class as a whole and to artificially explain or sub-divide it to exclude different groups like 'Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Mani'/'Mane', etc., for denying benefits of recognized Scheduled Tribe is not only without any authority but violative of Articles 14 and 342 of the Constitution ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 14 wp5449.13.odt of India. We have held that the Committee was in error in rejecting the claim by holding that the documents produced simply indicate the caste 'Mana' and not 'Mana Scheduled Tribe'.
11. In para 19 of the said decision, we have held that the concept of recognized Scheduled Tribe for the purposes of giving benefits and concessions was not prevailing prior to 1950 and, therefore, only caste or community to which a person belonged was stated in the birth, school and revenue records maintained. We have also held that the documents are issued in the printed format, which contains a column under the heading 'Caste' and there is no column of tribe. We have held that irrespective of the fact that it is a tribe, the name of tribe is not shown in the column of caste, and while entering the name of caste or tribe, the distinction between the caste and the tribe is ignored.
12. On the aspect of primacy of documents over the affinity test, we have relied upon the decision of the Apex Court in the case of Anand v. Committee for Scrutiny and Verification of Tribe ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 15 wp5449.13.odt Claims and others, reported in (2012) 1 SCC 113, and applied the broad parameters laid down therein. We have held that in view of the said decision of the Apex Court that the affinity test is to be used to corroborate the documentary evidence and it is not to be used as the sole criteria to reject a claim.
13. In the light of the decision of the Apex Court in Anand's case, cited supra, and the finding recorded by the Committee in para 14 of its order that all the documents produced by the petitioner from 1921-22 to 1999 consistently show the caste as 'Mana' recorded in the name of the paternal relatives of the petitioner, the Committee was in error to invoke the affinity test to reject the claim of the petitioner. The overwhelming evidence produced on record establishes the claim of the petitioner for 'Mana, Scheduled Tribe'. The Committee also failed to notice a caste validity certificate issued in the name of the cousin brother of the petitioner, which was procured by the police vigilance cell. The cousin brother of the petitioner was granted the certificate validating his claim for 'Mana, Scheduled Tribe'. In view of the ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 16 wp5449.13.odt decision of the Apex Court in Anand's case, cited supra, and the decision of the Division Bench of this Court in the case of Apporva d/o Vinay Nichade v. Divisional Caste Certificate Scrutiny Committee No.1 and others, reported in 2010(6) Mh.L.J. 401, the Committee had no option but to grant the certificate in favour of the petitioner for 'Mana, Scheduled Tribe', in the absence of any finding that there was any fraud or misrepresentation in obtaining the caste validity certificate by the cousins of the petitioner. Thus, the findings recorded by the Committee cannot be sustained and the order impugned needs to be quashed and set aside.
14. In the result, the petition is allowed in the following terms :
(i) The order dated 16-4-2013 passed by the Scheduled Tribe Certificate Scrutiny Committee, Gadchiroli, Division Nagpur, is hereby quashed and set aside.::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 17
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(ii) The certificate dated 15-9-2008 issued by the Sub-Divisional Officer, Bramhapuri, District Chandrapur, certifying that the petitioner belongs to caste 'Mana, Scheduled Tribe', which is an entry at Serial No.18 in the Constitution (Scheduled Tribes) Order, 1950, is held to be valid, and it is declared that the petitioner has established his claim for 'Mana, Scheduled Tribe'.
(iii) The Committee is directed to issue a validity certificate in the name of the petitioner accordingly within a period of one month from the date of producing the copy of this judgment by the petitioner to it.
(iv) The respondent Nos.4 to 6 are directed to release all the documents and concessions to the petitioner, if they are withheld for want of caste validity certificate, within a period of two weeks from the date of production of the copy of this judgment by the petitioner ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 ::: 18 wp5449.13.odt before them, by treating the petitioner as a candidate belonging to 'Mana, Scheduled Tribe'.
15. Rule is made absolute in the aforesaid terms. No order as to costs.
(M.G. Giratkar, J.) (R.K. Deshpande, J.) Lanjewar, PS ::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:22 :::