Vaibhav S/O Girdhar Gharatkar vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 9036 Bom

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


                        WRIT PETITION NO.3010 OF 2013


  Vaibhav s/o Girdhar Gharatkar,
  Aged about 19 years,
  Occupation - Student,
  R/o Plot No.68, Vikas Colony,
  Tah. Umrer, Distt. Nagpur.                      ... Petitioner



        Versus



  1.    The Scheduled Tribe Caste Certificate
        Scrutiny Committee, through its
        Chairman, Adiwasi Vikas Bhavan,
        Giripeth, Nagpur-440010.

  2.    The Directorate of Technical Education,
        Maharashtra State,
        Mumbai-400001.

  3.    The Principal,
        Smt. Radhikatai Pandav College of
        Engineering, Nagpur.

  4.    The Registrar,
        Rashtrasant Tukadoji Maharaj 
        Nagpur University, Nagpur.                ... Respondents




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  Ms P.D. Rane, Advocate for Petitioner.
  Shri   M.K.   Pathan,   Assistant   Government   Pleader   for   Respondent 
  No.2.
  Shri P.B. Patil, Advocate for Respondent No.4.



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

DATE : 24th NOVEMBER, 2017

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

1. This petition challenges the order dated 12-4-2013 passed

by the Scheduled Tribe Certificate Scrutiny Committee, Nagpur

Division, Nagpur, invalidating the caste claim of the petitioner for

'Mana, Scheduled Tribe', which is an entry at Serial No.18 in the

Constitution (Scheduled Tribes) Order, 1950 and cancelling and

confiscating the caste certificate dated 17-7-2010 issued by the

Sub-Divisional Officer, Umrer, District Nagpur, certifying that the

petitioner belongs to 'Mana, Scheduled Tribe'.

2. Before the said Committee, the petitioner produced total

twenty documents in support of his claim for 'Mana, Scheduled

Tribe'. The Police Vigilance Cell conducted the home enquiry and

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obtained the extract of school admission register from the Head

Master, Municipal Council Budhwari Primary School, Umrer,

District Nagpur, wherein the caste of the petitioner's elder uncle

Kisan Natthu Tukaram is recorded as 'Mani' on 16-6-1950, and

younger uncle Nandu s/o Natthu Tukaram Gharatkar is recorded as

'Hindu-Mana' on 10-7-1970. The other extract of school admission

register in the name of Gangadhar Natthu Tukaram, another elder

uncle of the petitioner, recording the caste 'Mani' on 22-7-1959 was

also obtained by the Police Vigilance Cell. The Committee relies

upon these entries of 'Mani' and 'Hindu Mana' to hold that these

castes are not included in Entry No.18 in the Constitution

(Scheduled Tribes) Order, and applying the affinity test, rejects the

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

3. It is neither the finding recorded by the Committee, nor it

is a fact that any separate caste/tribe or sub-caste/tribe as 'Mane' or

'Mani' or 'Hindu-Mana' exists in the State of Maharashtra. Such

castes are also not shown in the list of Vimukta Jatis, Nomadic

Tribes, Other Backward Classes or Special Backward Classes

maintained by the State Government for grant of benefits. In the

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publication of anthropological survey of India, styled as 'People of

India (Maharashtra), Volume XXX, Part II', the caste 'Mana' is dealt

with and it recites that 'Mana' is also known as 'Mane' or 'Mani'. It

states that etymologically, the word 'Mana' was probably derived

from the word 'Mannya' or 'Mann', i.e. honour, which the

Committee held in high esteem.

4. We have noticed the aforesaid entries relied upon by the

Committee showing the caste as 'Mani' or 'Hindu-Mana'. It is not in

dispute that the oldest document produced by the petitioner is the

entry in the vaccination register in respect of a girl child born to

Tukaram Fago, the great grand-father of the petitioner, recorded

on 28-11-2018, indicating the caste as 'Mana'. Even in the case of

the petitioner's elder uncle Kisan, we find the document at serial

No.18 in the order of the Committee, which is a school certificate,

wherein the caste is shown as 'Mana' at the time of leaving the

school in the year 1955. Thus, the first entry in the name of Kisan

recording 'Mane' is of 16-6-1950, whereas the entry in the year

1955 is of 'Mana'. Kisan and Nandu, both real uncles of the

petitioner, are the sons of Tukaram. In respect of Kisan, the entry

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is of 'Mani' recorded on 16-6-1950 in the school admission register,

whereas in respect of Nandu, it is of 'Hindu-Mana' recorded on

19-7-1970. In the primary school leaving certificate in the name of

Giridhar, the father of the petitioner, the caste is recorded as 'Mana'

on 1-10-1967. It is a fact that the petitioner produced the caste

validity certificates dated 20-5-2006, 19-7-2007 and 2-4-2008 in

the name of Arun and Anil, both cousin brothers of the petitioner;

and Giridhar, the father of the petitioner, respectively certifying

that their claim for 'Mana, Scheduled Tribe' is valid. Thus, the

confusion prevailing in the old documents gets completely cleared

to hold that the caste of the petitioner and his paternal relatives

has to be treated as 'Mana' in the documents having probative

value.

5. In the decision of this Court in the case of 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 its

decision in the case of State of Maharashtra & Ors. v. Mana Adim

Jamat Mandal, reported in (2006) 4 SCC 98, it was the argument

advanced that there are non-tribal communities, like 'Badwaik

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Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha

Mana', 'Gond Mana', 'Mani'/'Mane', etc., in Vidarbha Region, and

unless it is shown that they belong to 'Mana, Scheduled Tribe' in

Entry No.18, they are not entitled to the benefits of Scheduled

Tribe. It was also pointed out that 'Mana' Community is also

included in the lists of Other Backward Classes and Special

Backward Classes, and unless the affinity is established with 'Mana,

Scheduled Tribe', which is an entry at serial No.18, the benefits

meant for it cannot be availed. We have considered this aspect in

para 13 of the decision in the case of Gajanan s/o Pandurang

Shende v. The Head-Master, Govt. Ashram School, Dongargaon

Salod, Tah. Sindewahi, Distt. Chandrapur, and others, rendered in

Writ Petition No.3308 of 2013 on 8-11-2017, and we, therefore,

reproduce the said paras as under :

"13. In the decision of the Division Bench of this Court in the case of Mana Adim Jamat Mandal v. State of Maharashtra and others, reported in 2003(3) Mh.L.J. 513, it is held in para 22 as under :

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"22. It is clear from the plain reading of the aforesaid propositions that the Supreme Court was of the view that Dina's case - 38 ELR 212 was not decided correctly to the extent it held that enquiry was permissible and evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to be. In fact the court has clearly observed that no enquiry at all is permissible and no evidence can be let in, in the matter. In our view the Supreme Court decision in second Dina's case i.e. Dadaji @ Dina vs. Sukhdeo Baba and others which considered the effect of omission of the word "including", also cannot be taken to be good law after the decision of the Constitution Bench in State of Maharashtra vs. Milind, though the said decision is not expressly overruled. The Constitution Bench overruled the first Dina case i.e. Dina vs. Narayan Singh with reference to Entry 12 of the Scheduled Tribes Order though the court did not specifically refer to second Dina's case. It is needless to say that the same stood impliedly overruled as the law declared by the Constitution Bench in Milind's case was contrary to what was stated in second Dina's case."

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In para 24 of the said decision, this Court has held as under :

"24. ... In any event even if it is assumed that there was a separate community which is called as Mana in Vidharbha region which has no affinity with Gond tribe that community would also fall within the scope of 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. 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. The Mana community in the instant case having been listed in the Scheduled Tribes Order as it now stands, it is not open to the State

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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."

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'."

The Apex Court has 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'. The Division Bench of this Court in Mana Adim Jamat

Mandal's case, cited supra, 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

benefits of the Scheduled Tribes Order. Following this decision, we

have held in para 15 of Gajanan's case, cited supra, that the

Committee was clearly in error in holding that 'Mana' Community

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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'.

6. In para 18 of Gajanan's case, we have considered the

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

Pradesh & Ors., reported in 2004(9) SCALE 316, and it is held 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

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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 'Mana' Community throughout the

State is a class as a whole, and to artificially sub-divide 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 recognized Scheduled

Tribe is not only without any authority but violative of Articles 14

and 342 of the Constitution of India.

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7. In para 19 of Gajanan's case, 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 the name, the distinction between caste and tribe is

ignored.

8. In view of the aforesaid position of law and the fact that

there is no separate caste, sub-caste, tribe or sub-tribe, like 'Mani'

or 'Mane' prevailing in the State of Maharashtra, and that such

entry like 'Mani' or 'Mane" is not included either in the lists of

Vimukta Jatis, Nomadic Tribes, Other Backward Classes or Special

Backward Classes in the State of Maharashtra, we are of the view

that the Committee was in error in holding that the petitioner

belongs to 'Mani' or 'Mane', which is not a tribe 'Mana' in Entry

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No.18 in the Constitution (Scheduled Tribes) Order. In our view,

the confusion prevailing in respect of entry like 'Mani'/'Mane' is

absolutely clarified in all the subsequent documents pointed out

earlier showing the caste of the petitioner and his blood relatives as

'Mana' in all other documents and the Committee, therefore, could

not have rejected the claim of the petitioner by taking into

consideration the entries showing the caste 'Mani' or 'Mane'.

9. It is not in dispute that the Committee has issued the caste

validity certificates dated 20-5-2006, 19-7-2007 and 2-4-2008 in

the name of Arun and Anil, both real uncles of the petitioner; and

Giridhar, the father of the petitioner. In view of the decision of this

Court in Apoorva d/o Vinay Nichale v. Divisional Caste Certificate

Scrutiny Committee No.1 and others, reported in

2010(6) Mh.L.J. 401, in our view, the Committee could not have

taken a different view of the matter, creating an anomalous

situation that the caste of the father of the petitioner is held to be

valid as 'Mana, Scheduled Tribe', whereas the claim of the

petitioner for the same tribe is invalidated. We cannot, therefore,

sustain the order of the Committee.

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10. In the result, this petition is allowed in the following

terms :

(i) The order dated 12-4-2013 passed by the

Scheduled Tribe Certificate Scrutiny Committee, Nagpur

Division, Nagpur, invalidating the caste claim of the

petitioner for 'Mana, Scheduled Tribe' is hereby quashed

and set aside.

(ii) It is declared that the caste certificate

dated 17-7-2010 issued by the Sub-Divisional Officer,

Umrer, District Nagpur, certifying that the petitioner

belongs to 'Mana, Scheduled Tribe', which is an entry at

Serial No.18 in the Constitution (Scheduled Tribes) Order,

1950, is held to be valid.

(iii) The said Committee is, therefore, directed

accordingly to issue the validity certificate in the name of

the petitioner within a period of one month from the

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production of the copy of this judgment before it.

(iv) If any of the documents of the petitioner are

withheld by the respondent Nos.2 to 4 on the ground of

non-production of caste validity certificate of 'Mana,

Scheduled Tribe', the same shall be released to the

petitioner within a period of one week from the date of

production of the copy of this judgment before them, by

treating that the petitioner has established his claim for

'Mana, Scheduled Tribe'.

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

costs.

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



   Lanjewar, PS