Deepali D/O Eknath Dhok vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 8613 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                         WRIT PETITION NO.3618 OF 2013
                                     WITH
                         WRIT PETITION NO.3617 OF 2013



  1. WRIT PETITION NO.3618 OF 2013   :


  Eknath s/o. Balaji Dhok,
  Aged about 52 years, Occ. Service,
  r/o. Warora, Distt. Chandrapur.          ..........      APPELLANT


           // VERSUS //


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

  2. The Executive Engineer,
      Chandrapur Irrigation Division,
      Distt. Chandrapur.

  3. The Sub-Divisional Officer,
      Chandrapur Irrigation Division,
      Tq. Warora, Distt. Chandrapur.    ..........       RESPONDENTS




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  ____________________________________________________________
                      Ms Preeti Rane, Advocate for the Petitioner.
                      Mr.N.S.Rao, A.G.P. for the Respondents.
   ____________________________________________________________



  2.WRIT PETITION NO.3617OF 2013   :


  Deepali d/o. Eknath Dhok,
  Aged about 19 years, Occ. Student,
  r/o. Warora, Distt. Chandrapur.                   ..........      APPELLANT


           // VERSUS //


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

  2. The Principal,
      Anand Niketan College of 
      Agriculture, Warora, Tq. 
      Warora, Distt. Chandrapur.         ..........       RESPONDENTS


  ____________________________________________________________
                      Ms Preeti Rane, Advocate for the Petitioner.
                      Mr.N.S.Rao, A.G.P. for Respondent No.1.
   ____________________________________________________________


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

                                      DATED     :  10th November, 2017.





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

1. The claim of the petitioners for grant of Validity

Certificate for "Mana" Scheduled Tribe category, which is an entry at

Serial No.18 in the Constitution Scheduled Tribe Order has been

rejected by the Scheduled Tribe Certificate Scrutiny Committee at

Gadchiroli Division, Nagpur by an order dated 31.5.2013 and the

Caste certificate issued by Sub-Divisional Officer, Warora on

25.11.2010 has been cancelled and confiscated. This is the subject

matter of challenge in these petition.

2. Before the Committee, the petitioners placed on record

total nine documents, all showing the caste of the petitioners and

their blood relatives as "Mana". Police Vigilance Cell conducted

home inquiry and found three more documents and also found that

the documents produced by the petitioners and their relatives are

correct. The Committee records the finding that the documentary

evidence clearly shows the caste of the petitioners and their

forefathers, consistently recorded as 'Mana' in their school and

revenue records during the period from 1932-33 to 2008. In spite of

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this position, the Committee applied the affinity test and rejected the

documents 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 :

"7. ... The Act No.108 of 1976 was published in the gazette on 29-9-1976, and the area restriction of

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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

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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

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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 :

"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'."

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"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

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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

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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'."

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

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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 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

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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. Once it is established that all the documents produced by

the petitioners indicating castes of their paternal relatives including

grandfather and great grand father as "Mana" and no evidence is

obtained by the Police Vigilance Cell to indicate the castes of the

petitioners or their relatives other than "Mana", in our view, the

Committee has committed an error in rejecting the claims of

petitioners. The oldest document produced by the petitioners is of

1932-33 in the name of great grandfather Ragho Dewaji of petitioner

Eknath (which is on page no.18 in Writ Petition No.3617 of 2013 and

on page no.21 in Writ Petition No.3618 of 2013), a part of revenue

record, showing caste as "Mana". The other documents are in the

name of grandfather of petitioner Eknath namely Balaji and Pandurang

regarding School Leaving Certificate, in which entry of Mana was made

on 1.7.1950 (page no.17). In view of decision of Apex Court in Anand

Katole's case (cited supra), the documentary evidence has to be

assessed and unless there is a doubt about it, the question of applying

affinity does not at all arise. In our view, therefore, the Committee has

committed an error in rejecting the claim of the petitioner for 'Mana'

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Scheduled Tribe category. We, therefore, set aside the order of the

Committee and hold that the petitioners have established their claim

for 'Mana' Scheduled Tribe category.

13. In the result, the Writ Petitions are allowed as under :

a) The Orders dt.31.5.2013 passed by Scrutiny

Committee impugned in both these petitions are hereby

quashed and set aside.

(b) It is declared that the petitioners have established

that the Caste Certificates issued to them on 25.11.2010 by

the Sub-Divisional Officer, Warora are valid and the

petitioners belong to 'Mana' Scheduled Tribe category, which

is at entry at Serial No.18 in the Constitution Scheduled Tribe

Order.

c) The Committee is directed to issue Validity Certificate

accordingly to the petitioners within a period of one month from

the date of producing copy of this order.

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      d)                Rule is made absolute. No order as to costs.   




                               JUDGE                  JUDGE
   



  [jaiswal]





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