Shri Bhaskar S/O Daulatrao Gharat vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 8565 Bom

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

                          WRIT PETITION NO. 4917 OF 2013

            Shri Bhaskar Daulatrao Gharat,
            Aged about 40 years, Occ. Service,
            R/o. At Post - Katri, Kalamb,
            District - Yavatmal       ......                                 PETITIONER

                                  ...VERSUS...

 1.         The Scheduled Tribe Caste Certificate
            Scrutiny Committee, Irvin Chowk,
            Amravati.
 2.      The Senior Assistant Personnel ®,
         Bruhan Mumbai Electrical Supply
         & Transport, Best Bhavan,
         Mumbai                            ......                           RESPONDENTS
 -------------------------------------------------------------------------------------------
 Ms. Priti Rane, Advocate for the petitioner.
 Ms. M.H.Deshmukh, AGP for Respondent No.1 
 -------------------------------------------------------------------------------------------
                           CORAM: R. K. DESHPANDE AND
                                        M.G.GIRATKAR, JJ.
                                         th
                           DATE    : 9    NOVEMBER, 2017 .

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

1] The challenge in this petition is to the order

dated 15.06.2013 passed by the Scheduled Tribe Caste

Certificate Scrutiny Committee at Amravati, invalidating the

claim of the petitioner for Mana - Scheduled Tribe, which is

an entry at Sr. No.18 in the Constitution Scheduled Tribe

Order, 1950, and invalidating the caste certificate dated

09.12.2005 issued by the Sub Divisional Officer, Yavatmal,

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showing that the petitioner belongs to Mana - Scheduled

Tribe category.

2] Before the Committee, the petitioner relied upon

the birth extract in respect of petitioner's grand father issued

by the Tahsildar, Kalamb, District Yavatmal on 11.11.2010 in

which the caste is shown as 'Mana' entered on 05.09.1927.

The petitioner also relied upon the primary school leaving

certificate dated 03.07.1981 in his name showing his caste as

'Mana'. The another document is the college leaving

certificate in the name of the petitioner issued on 30.11.1996

in which the caste is mentioned as 'Mana', entered on

03.08.1992.

3] The Committee conducted home enquiry

through Police Vigilance Cell, which submitted the report on

27.12.2012, confirming that in the document dated

05.09.1927 produced by the petitioner, the caste is recorded

as 'Mana'. The Vigilance Cell also took out another entry

dated 07.02.1932 regarding child born to grand father

Laxman. The Police Vigilance Cell also recorded that in all

other documents, except two, the caste of the petitioner or

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his blood relatives is recorded as 'Mana'.

4] The Committee relies upon two documents taken

out by the Police Vigilance Cell, one was in the name of great

grand father Laxman Daulat showing caste 'Kunbi' recorded

on 17.02.1946 in the death extract of one male child and

another in the name of Laxman Daulat, the grand father

showing his caste as 'Kunbi' entered on 10.02.1946 in

relation to birth extract of one male child.

5] The petitioner has denied by filing reply to the

Police Vigilance Cell Report that he has no relation with

Laxman Daulat referred to as great grand father and Laxman

Daulat referred to as grand father in the death extract and

birth extract entered on 17.02.1946 and 10.02.1946, showing

the caste 'Kunbi'. We find that there is absolutely no

evidence on record to show the relation of the petitioner with

Laxman Daulat shown to be great grand father and grand

father of the petitioner in para 2 of the order impugned. In

the absence of any blood relation of the petitioner being

established with these 2 persons, the Committee has fallen

in error in relying upon these documents.

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          6]               Assuming that relationship of the petitioner with

the persons whose caste is recorded as 'Kunbi - Mana' is

established, we have taken a view in the case of Gajanan

Pandurang Shende vrs. The Head-Master, Govt. Ashram

School, Dongargaon Salod, Tah. Sindewahi, Distt.

Chandrapur and others in Writ Petition No. 3308 of 2013,

decided on 08.11.2017, that it is not permissible to apply

affinity test to exclude certain Mana communities from the

recognized Scheduled Tribes. We have relied upon the

decision of the Apex Court in the case of State of

Maharashtra vrs. Milind, reported in 2001 (1) Mh.L.J. 1,

which overruled the earlier decision in the case of Dina Vrs.

Narayansingh, reported in 38 ELR 212. We have held in

paragraphs 11 and 12 of Gajanan's case (cited supra) 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 :

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"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.

7] 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 :

"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

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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-

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

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that he belongs to 'Mana' community, it is not established that

he belongs to 'Mana Scheduled Tribe'.

8] 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 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'.

9] 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

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entering the name of caste or tribe, the distinction between

the caste and the tribe is ignored.

10] 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.

11] The oldest document produced by the petitioner

refers the entry 'Mana' on 05.09.1927, which is the birth

extract in the name of applicants grand father Laxman which

is produced on record. The entry is having probative value

and being the first entry in point of time will have to be

accepted to represent the caste of the petitioner as 'Mana'.

Even the entires relied upon by the Committee are

subsequent to the first entry. Once the caste of the petitioner

is shown to be 'Mana' which is an entry at Sr.No. 18 in the

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Constitution Scheduled Tribe Order, it is required to be read

as it is and the claim of the petitioner cannot be rejected.

12] In view of above, writ petition is allowed. The

order dated 15.06.2013 passed by the Scheduled Tribe

Certificate Scrutiny Committee, Amravati is hereby quashed

as set aside. 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.

The Committee is directed to issue caste validity certificate

accordingly in the name of 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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