Ashu D/O Dattuji Shrirame vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 9141 Bom

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

                         WRIT PETITION NO.5927 of 2013


  Ashu D/o Dattuji Shrirame,
  Aged about 30 years,
  Occupation - Service,
  R/o Katol, Distt. Nagpur.                     ... Petitioner


        Versus


  1.    The Scheduled Tribe Caste 
        Certificate Scrutiny Committee,
        Adiwasi Vikas Bhavan,
        Giripeth,
        Nagpur.

  2.    The Superintendent of Police (Rural),
        Civil Lines, Nagpur.                  ... Respondents



  Shri S.P. Khare, Advocate for Petitioner.
  Shri M.K. Pathan, Assistant Government Pleader for Respondents.


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

   DATE OF RESERVING THE JUDGMENT       :    23-11-2017

   DATE OF PRONOUNCING THE JUDGMENT :    29-11-2017




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

1. This petition challenges the order dated 8-10-2013 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 21-3-2009 issued by the

Sub-Divisional Officer, Katol, certifying that the petitioner belongs

to 'Mana, Scheduled Tribe'.

2. Before the said Committee, the petitioner produced total

thirty-one documents in support of her claim for 'Mana, Scheduled

Tribe'. Out of these documents, the documents at Serial Nos.1, 27

and 30 were the affidavits sworn-in before the Executive

Magistrate, Nagpur and Katol, stating that the petitioner and her

blood relatives belong to 'Mana, Scheduled Tribe'. The documents

at Serial Nos.3, 20 and 21 were the caste certificates of the

petitioner and her blood relatives. In the documents at Serial

Nos.4 and 5, the caste of the petitioner was not mentioned. The

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document at Serial No.10 was the copy of the first page of the

service-book in the name of the petitioner's father. The documents

at Serial Nos.14, 16, 18 and 22 were the xerox copies of the caste

certificates of the cousin sisters and cousin brother of the

petitioner. The document at Serial No.28 was the affidavit of the

real sister of the petitioner. In respect of all these documents, the

Committee records the finding that none of these documents can

be relied upon, as the same are subject to verification and scrutiny

by it.

3. The Committee considered the documents at Serial

Nos.15, 17, 19 and 23, which were the xerox copies of the caste

validity certificates issued in the names of the petitioner's cousin

sisters Ku. Mohini, Ku. Kusum and Ku. Durga, and the cousin

brother Tikaram. The documents at Serial Nos.11 and 13 were

also the caste validity certificates issued in the names of Baburao,

the cousin uncle, and Jagdish, the real uncle of the petitioner. The

Committee holds that these documents cannot be relied upon, as

the same were issued as per the decision of the Apex Court in Civil

Appeal No.5270 of 2004.

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4. The Committee relies upon the entry dated 14-4-1925 in

the name of Bhakya Vyankati, the grand-father of the petitioner, at

Serial No.233 in the school admission register, describing his caste

as 'Mani'. It also relies upon the caste entry in the birth register in

the name of Dattu Bhikaram, the father of the petitioner, as 'Mani',

and in the school admission register as 'Mane'. The Committee

holds that the Scheduled Tribe entry must be read as it is, and the

entries 'Mani' or 'Mane' in respect of the paternal blood relations of

the petitioner cannot be construed as 'Mana'. The Committee also

holds that in the documents at Serial Nos.1, 2, 3, 4, 5, and 6 in

para 4 of the order, in the names of Bhakya, the grand-father;

Dattu, the father; and Ramrao, Pundlik and Bhaiyya, the cousin

uncles, the castes were recorded as 'Mani' and 'Mane' in the years

1918, 1941, 1942, 1946, 1950 and 1951. The petitioner has,

therefore, failed to establish her claim for 'Mana'. The Committee

also applies the affinity test and rejects the claim of the petitioner.

5. The said Committee has dealt with the caste entries of

'Mani' and 'Mane' in the aforesaid six documents, referred to in

para 4 of the order, in the names of grand-father, father and cousin

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uncles of the petitioner. It is neither the finding recorded by the

Scrutiny Committee nor it is a fact that any separate caste/tribe or

sub-caste/tribe as 'Mane' or 'Mani' exists in the State of

Maharashtra. Such castes are also not shown in the lists of

Vimukata Jatis, Nomadic Tribes, Other Backward Classes or Special

Backward Classes maintained by the State Government for grant of

benefits. In the publication of anthropological survey of India,

styled as 'People of India (Maharashtra), Volume XXX, Part Two',

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 community held in high esteem.

6. We have noticed from the report of the Police Vigilance

Cell, which conducted an enquiry on 28-7-2010, 6-8-2010 and 21-

12-2010, that in relation to the first entry of the year 1918 in the

name of Bhakya Vyankati, the grand-father of the petitioner, there

is a discrepancy in the entry at Serial No.233 of the school

admission register, wherein the caste is shown as 'Mani', and the

entry was made on 14-4-1925. As against this, in the extract of the

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birth register entry of the same school, the caste recorded is 'Mana'

and the date of birth is shown as 1-1-1918. Similarly, the entry in

the school admission register in the name of Dattu Bhikaram, the

father of the petitioner, the caste is shown as 'Mane', whereas the

entry in the birth register of the school shows the caste 'Mani'.

7. The confusion prevailing in the old records gets clarified

by subsequent entries. The primary school leaving certificate in the

name of Dattu, the father of the petitioner, shows the caste 'Mana',

entered on 2-7-1955. The primary school leaving certificate in the

name of Madhukar, the real uncle of the petitioner, shows the caste

'Mana', entered on 13-7-1956. The secondary school leaving

certificate in the name of Dattu, the father of the petitioner, shows

the caste 'Mana', entered on 30-7-1957. The college leaving

certificate in the name of Jagdish, the uncle of the petitioner,

shows the caste 'Mana', entered on 24-6-1977. The primary school

leaving certificate in the name of Ku. Shewanti, the real aunt of the

petitioner, shows the caste 'Mana', entered on 1-7-1959. All such

documents of subsequent years produced clearly indicate the caste

of the petitioner and his blood relatives as 'Mana'.

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8. 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

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,

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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 :

"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

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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."

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

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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 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

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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

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'.

9. 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

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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 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',

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'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.

10. 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.

11. 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

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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

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'.

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

validity certificates dated 25-6-2007 in the name of Baburao, the

cousin uncle; dated 25-10-2006 in the name of Jagdish, the real

uncle; dated 17-7-2008 in the name of Mohini, the cousin sister;

dated 9-7-2008 in the name of Tikaram, the cousin brother;

dated 24-10-2008 in the name of Kusum, the cousin sister; and

dated 14-11-2008 in the name of Durga, the cousin sister of the

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petitioner, validating their claim for 'Mana, Scheduled Tribe', which

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

Order. 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 to

hold that the petitioner has failed to establish her claim for 'Mana,

Scheduled Tribe', whereas her paternal blood relatives belonged to

'Mana, Scheduled Tribe'.

13. On the aspect of primacy of the documents over the

affinity test, we rely 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 applying

broad parameters laid down therein, we have to hold that the

documents produced on record in the present case establish the

claim of the petitioner for 'Mana, Scheduled Tribe' in the absence of

any other caste or tribe found in the documentary evidence

produced on record. The Committee was in error in applying the

affinity test to reject the claim of the petitioner. The order of the

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Scrutiny Committee cannot, therefore, be sustained.

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

terms :

(i) The order dated 8-10-2013 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 21-3-2009 produced by the petitioner showing her

caste as '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 to issue

validity certificate in the name of the petitioner

accordingly within a period of one month from the date of

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production of copy of this judgment before it.

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

costs.

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

   Lanjewar, PS