Sushama D/O Vasant Jivtode vs The Directorate Of Technical ...
2017 Latest Caselaw 9037 Bom

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


                        WRIT PETITION NO.3531 OF 2013


  Sushama d/o Vasant Jivtode,
  Aged about 19 years,
  Occupation - Student,
  R/o Ramnagar, Lonwahi,
  Sindewahi,
  Distt. Chandrapur.                           ... Petitioner



        Versus



  1.    The Directorate of Technical
        Education,
        Maharashtra State,
        Mumbai-400 001.

  2.    The Principal,
        Priyadarshani Institute of
        Engineering & Technology,
        Nagpur.

  3.    The Registrar,
        Rashtrasant Tukadoji Maharaj
        Nagpur University,
        Nagpur.




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  4.    The Scheduled Tribe Caste
        Certificate Scrutiny Committee,
        Gadchiroli,
        through Vice Chairman.                        ... Respondents




  Ms P.D. Rane, Advocate for Petitioner.
  Shri   M.K.   Pathan,   Assistant   Government   Pleader   for   Respondent 
  No.1.
  Shri P.B. Patil, Advocate for Respondent No.3.



   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 31-5-2013 passed

by the Scheduled Tribe Certificate Scrutiny Committee, Gadchiroli,

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 29-1-2009 issued by the

Sub-Divisional Officer, Warora, District Chandrapur, certifying that

the petitioner belongs to 'Mana, Scheduled Tribe'.

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2. Before the said Committee, the petitioner produced total

seven documents in support of her claim for 'Mana, Scheduled

Tribe', which included the first page of the service-book in the

name of Vasant Jivtode, the father of the petitioner, showing the

caste 'Mana S.B.C.'; the birth certificate in the name of Tima s/o

Domdu, the great grand-father of the petitioner, showing the caste

'Mana'; and the two caste validity certificates dated 22-2-2007 and

7-2-2008 in the names of Shivendra Jivtode and Amol Jivtode, the

cousin brothers; and dated 4-11-2006 in the name of Gajanan

Jivtode, the real uncle of the petitioner, showing their caste 'Mana'.

3. The Police Vigilance Cell conducted the home enquiry and

took out some more documents, viz. (i) the extract of school

admission register dated 3-6-1935 and the school leaving certificate

dated 1-3-1937 in the name of Karu Domdu, the grand-father,

(ii) the birth certificate of the year 1930 in the name of son of

Domdu, the great grand-father, and (iii) the school leaving

certificate dated 24-7-1972 in the name of Vasant Jivtode, the

father of the petitioner, all showing the caste entry as 'Mana'.

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4. In para 14 of its order, the Committee records the finding

that the caste of the petitioner and her forefathers is consistently

recorded as 'Mana' in their school and revenue records during the

period from 1930 to 2004. However, all these documents are

rejected 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

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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'.

5. 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 :

6. 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.

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7. 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 requirements of ordinary place of residence in tribal areas and migration to non-tribal areas, was done away with."

8. 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

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said area to the present place of residence. We have also held that

the Committee was in error in taking such a view.

9. 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 :

"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."

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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.

10. On the aspect of inclusion of 'Mana' communities in the

lists of Other Backward Classes and Special Backward Classes, we

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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 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,

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'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 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

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Classes, and though the petitioner has established that he belongs

to 'Mana' community, it is not established that he belongs to 'Mana

Scheduled Tribe'.

11. 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',

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'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

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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'.

12. 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 the name of caste or tribe, the distinction

between the caste and the tribe is ignored.

13. 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

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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. Undisputedly, the Committee

finds that the caste of the petitioner and his forefathers is

consistently recorded as 'Mana' in the school and revenue records

during the period of 1930 to 2004. In view of this, the Committee

could not have applied the affinity test to reject the claim of the

petitioner.

14. It is not in dispute that the Committee has issued the

validity certificates dated 4-11-2006 in the name of Gajanan

Jivtode, the real uncle; and dated 22-2-2007 and 7-2-2008 in the

names of Shivendra Jivtode and Amol Jivtode, the cousin brothers

of the petitioner, certifying that they belong to 'Mana', which is an

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

In view of the decision of this Court in the case of 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, it was not

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permissible for the Committee to take a different view of the

matter, creating an anomalous situation that the real uncle and the

cousin brothers of the petitioner belong to 'Mana, Scheduled Tribe',

whereas the petitioner does not. The validity certificates issued in

favour of them is binding upon the Committee. We, therefore,

cannot sustain the finding of the Committee that the petitioner has

failed to establish the claim for 'Mana, Scheduled Tribe'.

15. In the result, the petition is allowed in the following

terms :

(i) The order dated 31-5-2013 passed by the

Scheduled Tribe Certificate Scrutiny Committee,

Gadchiroli, 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 29-1-2009 produced by the petitioner showing her

caste as 'Mana, Scheduled Tribe', which is an entry at

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

1950, is held to be valid.

(iii) The said Committee is, therefore, directed to issue

validity certificate in the name of the petitioner

accordingly within a period of one month from the date of

production of copy of this judgment before it.

(iv) The respondent Nos.1 to 3 are directed to release

all the documents of the petitioner, if they are withheld

for want of the caste validity certificate, immediately,

within a period of one week from the date of production

of copy of this judgment before them, by treating the

petitioner as a candidate belonging to 'Mana, Scheduled

Tribe'.

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

costs.

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

   Lanjewar, PS