Deepak S/O Keshav Garmade vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 8424 Bom

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

                          WRIT PETITION NO. 1754 OF 2013

            Deepak Keshav Garmade,
            aged about 29 years, Occ. Service,
            R/o. Nilkanth Park, Wayle Nagar,
            Kalyan (West), Tah. Kalyan,
            Distt. Thanke           ......                                 PETITIONER

                                  ...VERSUS...

 1.         The Scheduled Tribe Caste Scrutiny
            Committee, Gadchiroli.
 2.         The Assistant General Manager,
            IR & HRD,
 3.         The General Manager,
            IR & HRD
         Respondent Nos. 2 and 3 Office at
         Bank of Maharashtra, Central Office,
         Lokmangal 1501, Shivaji Nagar,
         Pune-411005                      ......                            RESPONDENTS
 -------------------------------------------------------------------------------------------
 Ms. Priti Rane, Advocate for the petitioner.
 Shri V.P.Gangane, AGP for Respondent No.1
 Shri   Ganesh   Iyer,   Advocate   h/f   Shri   S.S.Ghate,   Advocate   for
 Respondent Nos. 2 and 3
 -------------------------------------------------------------------------------------------
                           CORAM: R. K. DESHPANDE AND
                                        M.G.GIRATKAR, JJ.
                                         rd
                           DATE    :  3    NOVEMBER, 2017 .

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

1] The claim for grant of certificate of validity as a

person belonging to Mana - Scheduled Tribe, which is an

entry at Sr. No.18 in the Constitution Scheduled Tribe Order,

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1950, has been rejected by the Scrutiny Committee by its

order dated 01.02.2013, which is the subject matter of

challenge in this petition.

2] The petitioner placed on record of the Committee

total 9 documents in support of his claim for Mana -

Scheduled Tribe Category. The Police Vigilance Cell during

the course of enquiry obtained one additional document. The

Committee holds in para 6 of the order that the documentary

evidence viz., school records and revenue entries during the

period from 1942-43 to 1989 produced on record consistently

show the caste of the petitioner and his forefathers as 'Mana'

in the school and revenue records, but rejects the same for

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 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

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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

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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 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

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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 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 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-

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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

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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 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





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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 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.

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          12]              The   petitioner   placed   on   record   the   validity

certificates issued on 01.08.2006 by the Scrutiny Committee

in the name of Digambar Mukunda Garmale and

Chandrashekhar Mukunda Garmale, the real cousins (blood

relatives) of the petitioner, showing that they belong to

Mana-Scheduled Tribe and declaring the certificates issued

to them by the Sub Divisional Officer as valid. The petitioner

claimed that these two persons are the cousin brothers of the

petitioner and the blood relatives. The Committee holds that

the petitioner has not filed affidavit of the validity certificate

holder as per Rule 11(2)(d)(iii) of the Maharashtra Scheduled

Tribes (Regulation of issuance and Verification of ) Certificate

Rules, 2003. Hence, the certificates are ignored from

consideration.

13] Once the Committee holds that the documentary

evidence produced on record indicate the caste of the

applicant and his forefathers consistently as Mana in their

school and revenue record during the period 1942-43 to

1989, it is not open for the Committee to apply affinity test to

exclude certain categories of Mana from the entry 'Mana' in

Sr.No. 18 of the Constitution Scheduled Tribe Order.

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          14]              The   validity   Certificates   in   the   name   of

Digambar Mukunda Garmale and Chandrashekhar Mukunda

Garmale are issued by the same Scrutiny Committee which

rejected the claim of the petitioner. The Committee could

have easily verified the genuineness of these validity

certificates from their record. The question of filing an

affidavit as required by Rule 11 (2)(d)(iii) of the Maharashtra

Scheduled Tribes (Regulation of Issuance and Verification

of ) Certificate Rules, 2003 would arise only if the claim of

validity is certified by the Committee other than the

Committee constituted for Nagpur Region.

15] Be that as it may, even if these two validity

certificates are ignored, in our view the Committee was

wrong in applying the affinity test to reject the documents

having probative value, particularly when the relationship of

the petitioner with the persons in whose favour the

documents are issued is not at all disputed as having a blood

relation.

16] In view of above, we are unable to sustain the

order of the Scrutiny Committee. The same will have to be

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quashed and set aside by allowing the petition.

17] In the result, writ petition is allowed. The order

dated 01.02.2013 passed by the Scheduled Tribe Certificate

Scrutiny Committee, Gadchiroli is hereby quashed as set

aside. It is held that the petitioner has established his claim

for Mana - Scheduled Tribe category, which is an entry at

Sr.No. 18 of the Constitution Scheduled Tribe Order. The

Committee is directed to issue validity certificate to the

petitioner within a period of one month from the date of

production of the order of this Court before the Committee.

Rule is made absolute in these terms. No order as to

costs.

                           JUDGE                        JUDGE


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