Bombay High Court
Dipika Tukaram Nannaware vs The Scheduled Tribe Certificate ... on 29 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6168 OF 2013
Dipika Tukaram Nannaware,
At Kaparla, Post Ambeneri,
Tah. Chimur, Distt. Chandrapur....... PETITIONER
...VERSUS...
1. The Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli
through its Member Secretary.
2. The Registrar,
Maharashtra University of Health Sciences,
Nashik, Dindori Road, Mhasrul,
Nashik.
3. Dean, Dr. V.M. Memorial Government
Medical College, Solapur....... RESPONDENTS
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Shri K.P.Khare, Advocate for the petitioner.
Shri D.P.Thakare, AGP for Respondent Nos. 1
Shri J.B.Jaiswal, Advocate for Respondent No.2
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CORAM: R. K. DESHPANDE AND
M.G.GIRATKAR, JJ.
rd
DATE OF RESERVING JUDGMENT : 23 NOVEMBER, 2017
th
DATE OF PRONOUNCING JUDGMENT : 29 NOVEMBER, 2017
JUDGMENT (Per R.K.Deshpande, J.)
1] The challenge in this petition is to the order
dated 12.06.2013 passed by the Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli, invalidating the caste claim
of the petitioner for Mana - Scheduled Tribe, which is an
entry at Sr. No.18 in the Constitution Scheduled Tribe Order,
1950, and cancelling the caste certificate dated 17.08.2011
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issued by the Sub Divisional Officer, Warora, certifying that
the petitioner belongs to Mana - Scheduled Tribe Category.
2] Before the Committee, the petitioner placed on
record, 5 documents, all indicating the caste of the petitioner
and her blood relatives as 'Mana'. The Police Vigilance Cell
conducted home enquiry and found that in the revenue
record, the caste of Doma s/o Harko, the great grandfather of
the petitioner, is recorded as 'Mana' in the year 1918-19. The
other documents produced on record included a copy of
"Adhikar Abhilekh" in the name of Maroti Ganpati
Nannaware, grandfather of the petitioner, in which the entry
'Mana' was made in the year 1954-55.
3] In para 15, the Committee records the finding
that so far as documentary evidence is concerned, the caste
of the petitioner and her forefathers is consistently recorded
as 'Mana' in their school and revenue records from the year
1918-19 to 1969. However, the said documents are rejected
by the Committee for the reasons stated below;
" (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 her or her forefathers hail from the said
area and migrated to the present place of their
residence, from the said specified scheduled area,
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(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 she 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 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
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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."
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 her forefathers were the ordinary residents of
the place meant for the tribals in the Constitution (Scheduled
Tribes) Order prevailing prior to 1976 or that her 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
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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."
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.
9] On the aspect of inclusion of 'Mana' communities in
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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
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'.
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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 Classes, and though the petitioner has established that
she belongs to 'Mana' community, it is not established that she
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', '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
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'.
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
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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.
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 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] In view of the law laid down and the finding of
the Committee that in the documentary evidence, the caste
of the petitioner and her forefathers is consistently recorded
as "Mana' in their school and revenue records from the year
1918-19 to 1969¸ in our view the Committee has fallen in
error to reject the claim of the petitioner for Maha -
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Scheduled Tribe category.
14] The real brother of the petitioner namely
Sushilkumar Tukaram Nannaware was issued caste validity
certificate on 08.12.2010 by the said Committee in respect of
his claim for Mana - Scheduled Tribe category. In view of
the decision of the Division Bench of this Court in the case of
Apoorva Vinay Nichale vrs. Divisional Caste Certificate
Scrutiny Committee No.1, reported in 2010 (6) Mh.L.J. 401,
the Committee ought to have held that the petitioner was
entitled to issue caste validity certificate as her brother was
issued such certificate by the said Committee. No different
view could have been taken in the absence of any finding
recorded about fraud or misrepresentation in obtaining such
caste validity certificate.
15] In the result, writ petition is allowed. The order
dated 12.06.2013 passed by the Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli, invaliding the claim of the
petitioner for Mana - Scheduled Tribe category is hereby
quashed as set aside and the following order is passed.
(I) It is declared that the caste certificate dated
17.08.2011 produced by the petitioner and issued
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by the Sub Divisional Officer, Warora, is held to be
valid, certifying that she belongs to Mana -
Scheduled Tribe category, which is an entry at
Sr.No. 18 of the Constitution Scheduled Tribe
Order, 1950.
(II) The Committee is directed to issue caste validity
certificate accordingly in the name of the petitioner
within a period of one month from the date of
production of the order of this Court before the
Committee.
(iii) If any documents of the petitioner are withheld on
account of non production of caste validity
certificate, the respondent Nos. 2 and 3 are directed
to release the same within a period of two weeks
from the date of production of this judgment by
treating the petitioner as a candidate belonging to
'Mana - Scheduled Tribe' category.
Rule is made absolute in these terms. No order
as to costs.
JUDGE JUDGE
Rvjalit
