Bombay High Court
Subhash S/O Ramkrishna Chaudhari vs The Scheduled Tribe Caste ... on 8 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6658 OF 2013
Subhash s/o. Ramkrishna Chaudhari,
Aged 29 years, Occ. Service, r/o.
Charur (G), Post Chandankheda,
Tq. Bhadrawati, Distt.Chandrapur. .......... PETITIONER
// VERSUS //
1. The Scheduled Tribe Caste
Certificate Scrutiny Committee,
Gadchiroli, through its Chairman.
2. The Divisional Controller,
Maharashtra State Road Transport
Corporation, Chandrapur.
3. The Managing Director,
M.S.R.T.C., Maharashtra Transport
Bhavan, Dr. Anandrao Nair Marg,
Central Office, Mumbai-400 001. .......... RESPONDENTS
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:02:06 :::
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____________________________________________________________
Ms Preeti Rane, Advocate for the Petitioner.
Ms M.H.Deshmukh, A.G.P. for the Respondent/State.
____________________________________________________________
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
DATED : 8TH NOVEMBER, 2017.
ORAL JUDGMENT (Per R.K.Deshpande, J) :
1. The claim of petitioner for 'Mana' Scheduled Tribe,
which is an entry at Serial No.18 in the Constitution Scheduled Tribe
Order, has been rejected by the Scheduled Tribe Certificate Scrutiny
Committee, Gadchiroli Division, Nagpur by an order dt.11.6.2013
and the Caste Certificate dt.27.8.2010 issued by the Sub-Divisional
Officer, Warora, District Chandrapur certifying that the petitioner
belongs to 'Mana' Scheduled Tribe has been cancelled and
confiscated. Validity of this order is subject matter of this petition.
2. In para 15 of the order impugned in this petition, the
Committee records a finding that " So far as documentary evidence is
concerned, the caste of the applicant and his forefathers is
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consistently recorded as 'Mana' in their School and Revenue record
during the period 1918-19 to 2000". However, all these documents
are rejected by 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 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
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(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.
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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 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
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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 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 :
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"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
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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 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 :
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"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 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'."
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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 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
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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. The petitioner produced before the Committee total
nine documents consistently showing his caste as well as the caste
of his blood relatives as 'Mana' from 1918-19 to 2000, the oldest
being in the name of Dhondu Vithu @ Rama, the grandfather of the
petitioner. Another document is the School Leaving Certificate in
the name of uncle of petitioner Namdeo Dhondaji Chaudhari
showing the entry 'Mana' in the caste column entry at the time of
his admission in the School on 13.6.1947. Police Vigilance Cell
conducted the whole inquiry and found that the documents are in
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the name of blood relatives of petitioner showing caste 'Mana'.
There is not even a single document on record showing the caste of
petitioner or any of his forefathers other than 'Mana'.
13. In view of decision of the Apex Court in the case of
Anand vs. Committee for Scrutiny and Verification of Tribe
Claims and Others reported in 2011 (6) Mh.L.J. 919 "primacy has
to be given to the documents pertaining to the pre-Constitution
period and unless there is a doubt, the question of applying affinity
test does not at all arise. The Committee has applied the affinity
test to reject the documents and in our view, this is an error
committed by the Committee.
14. In view of the overwhelming evidence available on
record to establish that the petitioner belongings to 'Mana'
Committee, which is a tribe, it is not permissible to let him adduce
evidence to establish that it is not a recognized Scheduled Tribe in
entry no.18 of the Constitution Scheduled Tribe Order, 1950.
15. In view of the above, the Writ Petition is allowed in
the following terms :
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a) The order dt.11.6.2013 passed by the
Scheduled Tribe Caste Certificate Scrutiny Committee,
Gadchiroli/respondent no.1 is hereby quashed and set
aside.
b) It is declared 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, 1950.
c) The Committee is directed to issue Caste
Certificate in the name of petitioner accordingly within a
period of one month from today.
16) Rule is made absolute in the above terms. No order as
to costs.
JUDGE JUDGE
[jaiswal]
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