Bombay High Court
Durgaprasad S/O Ramdas Shrirame vs The Scheduled Tribe Caste ... on 22 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5419 OF 2013
Durgaprasad s/o. Ramdas Shrirame,
Aged about 39 years, Occ.Service,
r/o. Sironcha, Tq. Sironcha,
District Gadchiroli. .......... PETITIONER
// VERSUS //
1. The Scheduled Tribe Caste
Certificate Scrutiny Committee,
Gadchiroli.
2. The Chief Executive Officer,
Zilla Parishad,
Gadchiroli. .......... RESPONDENTS
::: Uploaded on - 27/11/2017 ::: Downloaded on - 28/11/2017 01:05:55 :::
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____________________________________________________________
Ms Preeti Rane, Advocate for the Petitioner.
Mr.V.P.Gangane, A.G.P. for Respondent No.1/State.
Mr.H.A.Deshpande, Advocate for Respondent No.2.
____________________________________________________________
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
DATED : 22nd November, 2017.
ORAL JUDGMENT (Per R.K.Deshpande, J) :
1. This Writ Petition challenges the Order dated 11th June,
2013 passed by the Scheduled Tribe Caste Certificate Scrutiny
Committee at Gadchiroli invalidating the claim of petitioner for
'Mana' Scheduled Tribe Category, which is an entry at Sr.No.18 in
the Constitution Scheduled Tribe Order, 1950 in relation to the State
of Maharasthra and invalidating the Caste Certificate dt.18.8.2004
issued by the Sub-Divisional Officer, Bramhapuri, Distirct Chandapur
certifying that the petitioner belongs to 'Mana' Scheduled Tribe
category.
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2. Before the said Committee, the petitioner produced ten
documents, out of which two documents were the Certificates of
Validity issued on 13.3.2008 and 6.9.2010 in the name of Prakash
Ramdas Shrirame and Ghansham Ramdas Shrirame respectively, the
real brothers of petitioner for 'Mana' Scheduled Tribe category. The
other documents produced on record also indicate the caste of the
petitioner and his blood relatives as 'Mana'. The oldest document
taken into consideration is of 1921-22, which is the revenue record
in the name of Ramji s/o Sumana, the great grand father of the
petitioner.
3. In para 15 of the order impugned, the Committee holds
that, so far as the documentary evidence is concerned, the caste of
the applicant and his forefathers is consistently recorded as 'Mana' in
their school and revenue records during the period 1921-22 to 1990.
However, all the documents are rejected giving 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
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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'.
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
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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 Tribes,
irrespective of their place of residence in the State. The
net result of such deletion was that the two-fold
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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 11 of the decision in
Gajanan's case as under :
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"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."
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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 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
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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
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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',
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'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 not only without any authority but violative of
Articles 14 and 342 of the Constitution of India. We have held that the
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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 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 shown in the column of caste, and while entering such
name 'Mana", 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
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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 aforesaid position of law and the
fact that the Committee has recorded the finding in para 15 that the
caste of the petitioner and his forefathers is consistently recorded as
'Mana' in the school and revenue records for the period from 1921-22
to 1990, in our view, the Committee was in error in rejecting the
documents by applying the affinity test. There is not even a single
document produced on record showing the caste other than 'Mana'. We
cannot, therefore, sustain the finding of the Committee rejecting the
claim of petitioner for 'Mana' Scheduled Tribe category by applying
affinity test.
14. On 8.11.2017, we had passed an order directing the
Committee to produce the entire record of Validity certificates
dt.13.3.2008 and 6.9.2010 issued in the name of Prakash and
Ghansham, the real brothers of petitioner. We have perused the record
produced before us and we find that, after considering the documents
having probative value, the Committee thought that it is not the case
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where the claim is doubtful and therefore, an inquiry through the
Police Vigilance Cell, as contemplated by Rule 12 of Maharashtra
Scheduled Tribes (Regulation of Issuance and Verification of)
Certificate Rules, 2003 was dispensed with. The Committee having
held that the real brothers of petitioner have established their claim for
'Mana' Scheduled tribe category, in our view, the Committee was in
serious error, in rejecting the claim of the petitioner.
15. In the result, the Writ Petition is allowed.
(a) The order dt.11.6.2013 passed by the
Committee/respondent no.1 is hereby quashed and set
aside.
(b) It is declared that the petitioner has
established his claim for 'Mana' Scheduled Tribe, which is
an entry at Sr. No.18 in the Constitution Scheduled Tribe
Order, 1950.
(c) The Caste Certificate dated 18.8.2004 produced
by the petitioner is held to be valid.
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(d) The Committee, is therefore, directed accordingly
to issue Caste Validity Certificate in the name of
petitioner.
16. Rule is made absolute in the above terms. No
order as to costs.
JUDGE JUDGE
[jaiswal]
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