Bombay High Court
Yogeshwar S/O Vitthalrao Dhok vs The Directorate Of Technical ... on 15 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4284 OF 2013
Yogeshwar Vitthalrao Dhok,
aged about 19 years, Occ. Student,
R/o. Bhadrawati, Tah.Bhadrawati,
Distt. Chandrapur ...... PETITIONER
...VERSUS...
1. The Director of Technical Education,
Maharashtra State, Mumbai.
2. The Principal,
Rajaram Bapu Institute of Technology,
Rajaram Nagar, Islampur,
Distt. Sangli,
3. The Vice-Chancellor,
Shivaji University, Sangli.
4. The Scheduled Tribe Caste Certificate
Scrutiny Committee, Gadchiroli,
through Vice Chairman. ...... RESPONDENTS
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Ms. Priti Rane, Advocate for the petitioner.
Shri N.G.Moharir, Advocate for Respondent No. 2
Shri N.S.Rao, Advocate for Respondent Nos. 1 and 4
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CORAM: R. K. DESHPANDE AND
M.G.GIRATKAR, JJ.
th
DATE : 15 NOVEMBER, 2017 .
JUDGMENT (Per R.K.Deshpande, J.)
1] The challenge in this petition is to the order
dated 06.06.2013 passed by the Scheduled Tribe Caste
Certificate Scrutiny Committee, Gadchiroli, Division, Nagpur,
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invalidating the caste claim of the petitioner for Mana -
Scheduled Tribe, which is an entry at Sr. No.18 in the
Constitution Scheduled Tribe Order, 1950, and cancelling
and confiscating the caste certificate dated 19.03.2010
issued by the Sub Divisional Officer, Warora, District
Chandrapur in the name of the petitioner, certifying that he
belongs to Mana - Scheduled Tribe category.
2] Before the Committee, the petitioner produced
13 documents of his blood relatives including the father,
grand father, great grand father showing their caste as
"Mana" and the oldest document is of 1918-19, which is a
revenue record in the name of one Narayan Zitu, great grand
father of the petitioner. The Police Vigilance Cell conducted
the home enquiry and found that, in the extract of school
admission register in the name of Vithu Dhok, father of the
petitioner, an entry of 01.08.1956 is recorded as "Mane" in
the caste column. The said document is not produced on
record. On the contrary, the school leaving certificate and
extract of school admission register in respect of the same
person, father of the petitioner, the entry is recorded as
"Mana" in the caste column on 01.06.1958. Be that as it
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may, the documents prior to 1956 indicate the caste as
"Mana" recorded in the documents in respect of the paternal
blood relatives of the petitioner.
3] While dealing with all these documents in para
16 of the order, the Committee holds that though the caste of
the petitioner's grand father and great grand father is
recorded as "Mana" in the year 1954-55, 1918-1999 and then
consistently recorded as "Mana" during the period 1966 to
2007, which rejects all these documents for the following
reasons;
" (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
(d) that the documents produced simply indicate
the caste as 'Mana' and not 'Mana, Scheduled Tribe'.
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4] 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.
5] 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.
6] 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
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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."
7] 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.
8] 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
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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.
9] 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
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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-
tribe of 'Gond'. The Division Bench of this Court has held
that it is not open to the State Government or indeed to this
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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'.
10] 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
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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'.
11] 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
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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.
12] 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.
13] Keeping in view the parameters laid down by the
Apex Court in Anand Katole's case, cited supra, it has to be
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held that the petitioner has established on the basis of
documentary evidence that he belongs to "Mana" which is an
entry at Sr.No. 18 in the Constitution Scheduled Tribes Order
and there is no room for any doubt so as to invoke the affinity
test to reject the claim for "Mana - Scheduled Tribe"
category.
14] The petitioner also produced on record the caste
validity certificate dated 17.08.2007 issued in the name of
Satish Champatrao Dhok, cousin brother of the petitioner,
showing that he belongs to "Mana-Scheduled Tribe"
category. The Committee has rejected the said document by
observing that perusal of the validity holder's case file reveals
that the same has been issued without conducting vigilance
inquiry and without testing affinity. In view of the decision of
the Division Bench of this Court in Apoorva Nichale's case, it
is not open for the Committee to take a different view of the
matter, unless there is a finding recorded that the caste
validity certificate was obtained by practicing fraud and
misrepresentation, which is not the finding recorded by the
Committee in the present case and it was, therefore, not
possible for the Committee to take a different view of the
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matter.
15] It is reported that Respondent No.2 College is
not releasing the documents of the petitioner on the ground
that the petitioner has failed to pay the dues recoverable from
him as a candidate belonging to "open category". The
learned counsel for the petitioner submits that all the dues
have been paid by the petitioner to the respondent No.2
College as a candidate belonging to "Scheduled Tribe
category". If this is the position, then respondent No.2
College will have to be directed to release all the documents
to the petitioner upon satisfaction that the petitioner has paid
all the dues as a candidate belonging to "Scheduled Tribe
category" and it shall not insist upon the payment of dues by
the petitioner as a candidate belonging to "open category".
16] In the result, writ petition is allowed as under;
(a) The order dated 06.06.2013 passed by the
Scheduled Tribe Certificate Scrutiny Committee,
Gadchiroli is hereby quashed as set aside.
(b) It is declared that the caste certificate dated
19.03.2010 produced by the petitioner, issued by the
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Sub Divisional Officer, Warora, District-Chandrapur,
is valid, showing that petitioner belongs to "Mana-
Scheduled Tribe" category, which is an entry at
Sr.No. 18 of the Constitution Scheduled Tribe Order.
(c) The Committee is, therefore, directed to issue caste
validity certificate in the name of the petitioner within
a period of four weeks from the date of production of
the order of this Court before the Committee.
(d) The respondent No.2 is directed to release all the
documents of the petitioner in the light of what we
have observed in the matter and without insisting for
payment of fees as a candidate belonging to 'open
category'. The documents be released to the
petitioner within a period of two weeks from the date
of production of the order of this Court before it.
In view of above, the civil applications do not
survive.
Rule is made absolute in above terms. No order
as to costs.
JUDGE JUDGE
Rvjalit
