Ku. Rajashri D/O Rameshrao Gajbe vs The Scheduled Tribe Certificate ...
2017 Latest Caselaw 8806 Bom

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


                  Writ Petition No.2456 of 2013


  Ku. Rajashri D/o Rameshrao Gajbe,
  Aged about 19 years,
  Occupation - BE Part-I Student,
  Resident of Care of Shri Sudhakarrao
  Kathe, 
  Kirti Nagar, Plot No.170,
  Dighori, Nagpur.                                ... Petitioner


       Versus


  1. The Scheduled Tribe Certificate
     Scrutiny Committee,
     Nagpur Division, 
     Adiwasi Vikas Bhawan,
     Nagpur.

  2. Yashwantrao Chavan College of
     Engineering,
     through its Principal,
     Hingna Road, Wana Dongri,
     Nagpur.

  3. Nagpur University,
     through its Registrar,
     Civil Lines,
     Nagpur.                                      ... Respondents




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  Shri R.S. Parsodkar, Advocate for Petitioner.
  Smt.   M.H.   Deshmukh,   Assistant   Government   Pleader   for 
  Respondent No.1.
  Ms Arti Singh, Advocate, holding for Shri P.D. Meghe, Advocate 
  for Respondent No.2.



               Coram : R.K. Deshpande & M.G. Giratkar, JJ.

Date : 17th November, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The challenge in this petition is to the order

dated 1-4-2013 passed by the Scheduled Tribe Certificate

Scrutiny Committee, Nagpur Division, Nagpur, invalidating the

claim of the petitioner for 'Mana', Scheduled Tribe Category,

which is an entry at Serial No.18 in the Constitution (Scheduled

Tribes) Order, 1950 and consequently cancelling and

confiscating the caste certificate dated 22-6-2009 issued by the

Sub-Divisional Officer, Katol, District Nagpur, in the name of the

petitioner as belonging to 'Mana', Scheduled Tribe.

2. Before the Committee, the petitioner produced

twenty-three documents on record, which all recorded the caste

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of the petitioner and her blood relatives as 'Mana'. The Police

Vigilance Cell conducted home enquiry and submitted its report

on 18-11-2011. The report finds that in the revenue record

(Bandobas Khasra) for the year 1912-13, the case of Bala alias

Laxman, the great grandfather of the petitioner, is recorded as

'Mani'; whereas the castes of Manik Bala, the grandfather of the

petitioner; Ramesh Manikrao Gajbe, the father of the petitioner;

and Ragho Bala, the cousin paternal grandfather of the

petitioner, are recorded as 'Mana' in the revenue records for the

year 1932, 2008 and 1942 respectively.

3. The Committee holds that the caste 'Mani' is not

included in the list of Scheduled Tribes in Maharashtra and

rejects the contention of the petitioner that the caste 'Mani' was

wrongly entered instead of 'Mana'. The petitioner produced the

caste validity certificate dated 30-7-2008 in the name of Ramesh

Manikrao Gajbe, the father; and the caste validity certificate

dated 5-4-2008 in the name of Ganesh Manikrao Gajbe, the

uncle, validating their claim for 'Mana', Scheduled Tribe

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Category. The Committee further holds that the certificates were

issued without conducting home enquiry through the Police

Vigilance Cell.

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 such issues in detail and we rely upon the law laid down

in the said decision. We need not reiterate everything which we

have said in the said decision. However, certain aspects are

required to be dealt with as under :

5. On the aspect that there are non-tribal communities, like

'Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 'Maratha Mana',

'Gond Mana', 'Mani'/'Mane', etc., we have considered in

Gajanan's case, the impact of the Constitution Bench judgment

in the case of State of Maharashtra v. Milind and others, reported

in 2001(1) Mh.L.J. 1, which overruled the earlier decision in

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Dina v. Narayan Singh, reported in 38 ELR 212. In paras 11 and

12 of the said decision, we have held 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."

"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."

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6. On the aspect of inclusion of 'Mana' Community in the

Other Backward Classes/Special Backward Classes category, we

relied upon the decision of this Court in Mana Adim Jamat

Mandal v. State of Maharashtra and others, reported in

2003(3) Mh.L.J. 513, which is confirmed by the Apex Court in

the decision of State of Maharashtra & Ors. v. Mana Adim Jamat

Mandal, reported in (2006) 4 SCC 98. In paras 13 and 14 of

Gajanan's case, we have held 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

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'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."

7. In para 18 of the said decision, we have considered the

decision of the Apex Court in the case of E.V. Chinnaiah v. State

of Andhra Pradesh & Ors., reported in 2004(9) SCALE 316, and

we have held that 'Mana' Community through the State is a class

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as a whole and to artificially sub-divide or sub-classify it to

exclude different groups like 'Badwaik Mana', 'Khand Mana',

'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana',

'Mani'/'Mane', etc., for denying the benefits of Scheduled Tribe is

not only without authority but violative of Articles 14 and 342 of

the Constitution of India.

8. 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.

The documents are issued in a printed format, which contains a

column under the heading 'Caste' and there is no column of

'Tribe', the name of tribe is shown in column of 'Caste'. The fact

that 'Mana' is entered in 'Caste' column does not mean that it is

not a tribe.

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9. It is not the finding of the Committee that 'Mani' is a

separate 'Tribe' or 'Caste' other than 'Mana'. Though in this case

entry in the year 1912-13 is 'Mani', it is solitary and all

subsequent entries are of 'Mana', which we find to be in

conformity with the explanation furnished by the petitioner that

the first entry 'Mani' was made by mistake, which is not repeated

in subsequent entries.

10. Rule 12(2) of the Maharashtra Scheduled Tribes

(Regulation of Issuance and Verification of) Certificate Rules,

2003 runs as under :

"12. Procedure to be followed by Scrutiny Committee.

(2) If the Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant the Scrutiny Committee shall forward the applications to the Vigilance Cell for conducting the school, home and other enquiry."

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In view of the aforesaid Rule, if the Scrutiny Committee

is not satisfied with the documentary evidence produced by the

applicant, the case can be forwarded to the Police Vigilance Cell

for conducting the school, home and other enquiry. However, if

the Committee is satisfied on the basis of the documents

produced that no further enquiry is necessary through the Police

Vigilance Cell, it has a discretion to decide the case and pass the

order issuing the caste validity certificate.

11. In view of this position and the decision of the decision

of the Division Bench of this case in Apoorva d/o Vinay Nichale v.

Divisional Caste Certificate Scrutiny Committee No.1 and others,

reported in 2010(6) Mh.L.J. 401, which has been consistently

followed, we hold that the Committee ought to have validated

the claim of the petitioner for 'Mana', Scheduled Tribe Category

on the basis of two validity certificates issued in the name of the

father and uncle of the petitioner.

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12. In view of above, we allow this petition in the following

terms :

(i) The order 1-4-2013 passed by the Scheduled

Tribe Certificate Scrutiny Committee, Nagpur Division,

Nagpur, invalidating the claim of the petitioner for

'Mana', Scheduled Tribe Category and cancelling and

confiscating the caste certificate dated 22-6-2009, is

hereby quashed and set aside.

(ii) It is declared that the petitioner has established

her case for 'Mana' Scheduled Tribe Category, which is

an entry at Serial No.18 in the Constitution (Scheduled

Tribes) Order, 1950, and we direct the said Committee

to issue accordingly a caste validity certificate in the

name of the petitioner within a period of one month

from the date of production of copy of this judgment

before it.

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(iii) We direct the respondent No.2-College and the

respondent No.3-University to issue original

8th Semester Mark Sheet of B.E. Course and original

decree certificate to the petitioner, if he has already

been declared successful in the examination held in the

month of June, 2016.

(iv) The respondent Nos.2 and 3 need not wait for

production of caste validity certificate from the Scrutiny

Committee, but shall issue the said documents within a

period of two weeks upon production of the copy of this

judgment by the petitioner before them.

13. Rule is made absolute in above terms. No order as to

costs.

(M.G. Giratkar, J.) (R.K. Deshpande, J.) Lanjewar, PS