Sneha D/O Gajanan Shende vs The Principal Mariya ...
2017 Latest Caselaw 9429 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR.

                                WRIT PETITION NO. 3309 OF 2013

Sneha Gajanan Shende,
aged about 18 years, Occupation
Student, R/o Mul, Tah. Mul,
District Chandrapur.                                                      ... PETITIONER

                                                     VERSUS

1. The Principal,
     Mariya Mahavidyalaya, Mul,
     District Chandrapur.

2. The Registrar,
     Nagpur University, Nagpur.

3. The Scheduled Tribe Caste Certificate
     Scrutiny Committee, Gadchiroli.
     Through Vice Chairman.                                               ... RESPONDENTS

                                      ....
Ms. Preeti Rane, Advocate for the petitioner.
Shri T.A. Mirza, Assistant Government Pleader for respondent No.3.
                                      ....

                                                                     CORAM :  R.K. DESHPANDE AND
                                                                                          M.G. GIRATKAR, JJ.

DATED : 08TH DECEMBER, 2017.

ORAL JUDGMENT : (Per R.K. Deshpande, J.)

The challenge in this petition is to the order dated 08.08.2012

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 Tribes) Order, 1950 and cancelling and confiscating the caste

certificate dated 28.04.2011 issued by the Sub-Divisional Magistrate,

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Chandrapur, certifying that the petitioner belongs to "Mana" Scheduled

Tribe.

2. Before the Committee, the petitioner produced total eight

documents in support of her caste claim for 'Mana' Scheduled Tribe. These

documents include the oldest document of 1919-20 which is revenue entry in

the name of Patralya, the great grandfather of the petitioner recording the

caste as 'Mana'. Another document is the extract of school admission

register of 1946 in the name of Pandurang, the grandfather of the petitioner

containing caste entry as 'Mana'. All the documents produced on record

indicate the caste entry 'Mana'. The Police Vigilance Cell conducted the

home enquiry and found that the documents produced by the petitioner are

of pre constitutional and post constitutional period containing caste entry as

'Mana'. The petitioner also produced two caste validity certificates; one

dated 19.10.2005 in the name of Ramesh, the cousin uncle and another dated

25.11.2010 in the name of Giraja, aunt of the petitioner validating their claims

for 'Mana' Scheduled Tribe. The Committee, however, rejects these

documents by applying tests 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 area,

(b) that there are non-tribal communities like 'Badwaik

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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'.

3. 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 with all the aforesaid reasoning and we point out

below what we have held in the said decision :

4. 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.

5. On the aspect of original place of residence and migration, we

have held in para 7 of the said decision as under :

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"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 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."

6. 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.

7. 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 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

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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 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.

8. On the aspect of inclusion of 'Mana' communities in the lists of

Other Backward Classes and Special Backward Classes, we have relied upon

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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

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 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

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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 belongs to 'Mana Scheduled Tribe'.

9. 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

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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 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 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'.

10. In para 19 of the said decision, we have held that the concept of

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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.

11. 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 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.

12. Keeping in view the law laid down as aforesaid and the fact that

the petitioner produced on record the documents of pre constitutional

period having probative value indicating the caste of the petitioner and her

forefathers as 'Mana', in our view the Committee was in error in rejecting the

claim of the petitioner for 'Mana' Scheduled Tribe. In view of the decision of

the Apex Court in Anand's case, cited supra, the question of invoking affinity

test to reject the claim does not arise as we do not find any doubt in respect

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of the claim of the petitioner for 'Mana' Scheduled Tribe.

13. The Committee does not say that two caste validity certificates

dated 19.10.2005 and 25.11.2010 produced by the petitioner in the name of

her cousin uncle and aunt, validates their claim for 'Mana' Scheduled Tribe.

In the absence of any finding, fraud of misrepresentation practiced upon by

the paternal relatives in getting the caste validity certificates in their name,

the Committee could not have rejected the claim of the petitioner for 'Mana'

Scheduled Tribe. In the decision of Division Bench of this Court in the case

of Apoorva Vinay Nichale .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 validity certificate in the name of the petitioner as taking

a different view would amount to creating anomalous situation that the

paternal relatives of the petitioner belong to 'Mana' Scheduled Tribe;

whereas the petitioner does not. We cannot, therefore, sustain the rejection

of the claim of the Scrutiny Committee.

14. In the result, the petition is allowed in the following terms :

(i) The order dated 08.08.2012 passed by the Scheduled Tribe

Certificate Scrutiny Committee, Gadchiroli, Division Nagpur,

invalidating the claim of the petitioner for 'Mana' Scheduled

Tribe is hereby quashed and set aside.

(ii) The certificate dated 28.04.2011 issued by the Sub-

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Divisional Magistrate, 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 her 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.1 and 2 are directed to release all the

documents and issued in favour of the petitioner if they are

withheld as a candidate belonging to Scheduled Tribe within a

period of two weeks from today upon production of the copy of

this judgment.

14. Rule is made absolute in the aforesaid terms. No order as to

costs.

                JUDGE                                                                   JUDGE 
      
*rrg.