Diwakar S/O Sadashiv Wakade vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 8422 Bom

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

                  Writ Petition No.1394 of 2013

  Diwakar s/o Sadashiv Wakade,
  Aged about 38 years,
  Occupation - Service,
  R/o Sonegaon, Tah. Chimur,
  Distt. Chandrapur.                                     ... Petitioner


        Versus


  1. The Scheduled Tribe Caste Certificate
     Scrutiny Committee, Gadchiroli.

  2. The Chief Executive Officer,
     Zilla Parishad, Chandrapur.

  3. The Education Officer (Primary),
     Zilla Parishad, Chandrapur.                         ... Respondents


  Ms Preeti Rane, Advocate for Petitioner.
  Shri   N.S.   Rao,   Assistant   Government   Pleader   for   Respondent 
  No.1.


                Coram : R.K. Deshpande & M.G. Giratkar, JJ.

rd Date : 3 November, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The claim of the petitioner for grant of validity

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certificate as belonging to 'Mana', Scheduled Tribe Category,

which is an entry at serial No.18 in the Constitution (Scheduled

Tribe) Order, 1950, has been rejected by the Scheduled Tribe

Certificate Scrutiny Committee, Gadchiroli Division, Nagpur, by

its order dated 11-10-2012, which is the subject-matter of

challenge in this petition.

2. The Committee records the finding that the entries in

the school and revenue records of the blood relatives of the

petitioner for the period from 1923-24 to 1950 consistently

records the caste 'Mana'. However, all such documents are

rejected mainly on the following reasoning :

(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,

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(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'.

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

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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 :

"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

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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

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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

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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 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

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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

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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

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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 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

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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

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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 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

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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. In support of the claim for 'Mana', Scheduled Tribe

Category, the petitioner produced before the Scrutiny Committee

a school leaving certificate issued in the name of his paternal

uncle Nathu Kawadu, showing the date of his admission in the

school as 1-8-1953, and in the column of caste, entry 'Mana' is

shown. The Committee conducted an enquiry through the police

vigilance cell, which found one document in the name of the real

uncle of the petitioner, Maroti Zibla, which is a birth record,

showing an entry 'Mana' in the caste column, entered on

28-8-1928. Similarly, one another document in the name of

Narayan Kawadu, shown to be the paternal uncle of the

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petitioner, wherein an entry 'Mana' is recorded in the caste

column on 22-2-1949 was also found.

13. The petitioner produced the school leaving certificate

issued in the name of his paternal uncle Nathu Kawadu, which

shows the caste 'Mana' entered on 1-8-1953. The police

vigilance cell constituted by the Committee itself traced out

another document in the name of Maroti Zibla, the real uncle of

the petitioner, in which the caste is shown as 'Mana', entered on

28-8-1928. The relationship of the petitioner with Nathu

Kawadu and Maroti Zibla is not in dispute. Merely because the

caste 'Mana' is shown in the list of Other Backward Class,

prepared in the year 1960 and subsequently included in the list

of Special Backward Class, the petitioner cannot be denied the

status of 'Mana', Scheduled Tribe Category based upon the

documents, more particularly in the name of Maroti Zibla,

having a probative value, being a pre-constitutional document.

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14. So far as the question of affinity is concerned, once it

is established that the document having a probative value

pertaining to the period prior to 1950 is placed on record and

the authenticity of it is not in dispute and the petitioner has

established the relationship with the persons in whose names the

document is executed, there is hardly any scope to reject the

claim on the basis of the affinity test to exclude particular

community of 'Mana' from the entry at serial No.18 of the

Constitution (Scheduled Tribes) Order, 1950 by leading

evidence.

15. In the result, the petition is allowed. The order

dated 11-10-2012 passed by the Scheduled Tribe Certificate

Scrutiny Committee, Gadchiroli Division, Nagpur, invalidating

the caste claim of the petitioner, is hereby quashed and set aside.

It is held that the petitioner has established his claim as 'Mana',

which is an entry at serial No.18 in the Constitution (Scheduled

Tribes) Order, 1950. The Scrutiny Committee is directed to issue

a caste validity certificate to the petitioner accordingly, within a

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period of four weeks from the date on which he produces the

copy of this judgment before it.

16. Rule is made absolute in above terms. No order as to

costs.

(M.G. Giratkar, J.) (R.K. Deshpande, J.)

Lanjewar, PS