Bombay High Court
Ku. Smita D/O Ramesh Ghodmare vs The Scheduled Tribe Certificate ... on 29 November, 2017
Bench: Ravi K. Deshpande
1 jg.wp.4010 & 4044.13.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4010 OF 2013
Ku. Pooja D/o Ramesh Ghodmare,
aged about 19 years, Occu : MBBS Student,
R/o Masal, Tq. Chimur,
District - Chandrapur. ... Petitioner
VERSUS
(1) The Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli,
Division, Nagpur, through its
Member Secretary, Gadchiroli.
(2) N.K.P. Salve Institute of Medical
Sciences and Lata Mangeshkar
Hospital, through it Dean, Digdoh
Hills, Hingna Road, Nagpur-19.
(3) The Maharashtra University of
Health Sciences, Vani Road, Mhasrul,
Nashik-422 004.
Respondent
(4) Shri A. S. Gunjal, Vice Chairman,
Nos. 4 to 6 the Scheduled Tribe Certificate
deleted vide Scrutiny Committee, Gadchiroli.
Court's order
dtd. 24-6-2014 (5) Shri S. S. Chavan, Member
Secretary, the Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli.
(6) Dr. R. D. Tribhuvan, Member,
the Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli.
(7) State of Maharashtra, through its
Secretary, Tribal Welfare Department,
Mantralaya, Mumbai - 32. ... Respondents
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with
WRIT PETITION NO. 4044 OF 2013
Ku. Smita D/o Ramesh Ghodmare,
aged about 21 years, Occu : B.Sc.(Agri.) Student,
R/o Masal, Tq. Chimur,
District - Chandrapur. ... Petitioner
VERSUS
(1) The Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli,
(Division) Nagpur, through its
Member Secretary, Gadchiroli.
(2) Shri Shivaji Krushi Mahavidyalaya,
Amravati, through it Principal,
Amravati.
Respondent
(3) Shri A. S. Gunjal, Vice Chairman,
Nos. 3 to 5 the Scheduled Tribe Certificate
deleted vide Scrutiny Committee, Gadchiroli.
Court's order
dtd. 24-3-2014 (4) Shri S. S. Chavan, Member
Secretary, the Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli.
(5) Dr. R. D. Tribhuvan, Member,
The Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli.
(6) State of Maharashtra, through its
Secretary, Tribal Welfare Department,
Mantralaya, Mumbai - 32. ... Respondents
-------------------------------------------------------------------------------------------------
Shri J. K. Matole, Advocate h/f Shri R. S. Parsodkar, Advocate for the
petitioners
Shri N. S. Rao, Additional Government Pleader for the respondent
nos. 1 & 7 in WP 4010/13 and for respondent no. 1 & 6 in WP 4044/13
None for other respondents
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
DATE : 29-11-2017
Common Judgment (Per : R. K. Deshpande, J)
Both these petitions are filed by the real sisters challenging
the order dated 17-4-2013 passed by the Scheduled Tribe Certificates
Scrutiny Committee, Gadchiroli invalidating their claim for 'Mana',
Scheduled Tribe which is a entry at serial no. 18 in the Constitution
(Scheduled Tribes) Order, 1950 and cancelling and confiscating the
caste certificates dated 12-6-2012 issued by the Sub Divisional
Magistrate, Chandrapur certifying that the petitioners belong to Mana,
Scheduled Tribe.
2. Before the said committee, the petitioners produced 8
documents in support of their claim for 'Mana', Scheduled Tribe. The
oldest document produced is the school leaving certificate in the name
of Patru Fago, the grandfather of the petitioners containing entry 'Mana'
recorded on 3-7-1944. Another document is the land record of the year
1950-51 in the name of Sego, the great grandfather of the petitioners
containing entry 'Mana'. The service book entries in the name of Patru,
4 jg.wp.4010 & 4044.13.odt
the grandfather and Ramesh, the father of the petitioners contained
entry 'Hindu (Mana)'. The Police Vigilance Cell conducted home
enquiry and found the documents to be genuine and relate to the
persons who are paternal/blood relatives of the petitioners.
3. In paragraph 14, the committee records the finding that the
caste of the petitioners and their forefathers is consistently recorded as
'Mana' in their school and revenue records during the period from 1944
to 2006. However, the 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
5 jg.wp.4010 & 4044.13.odt
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 jg.wp.4010 & 4044.13.odt
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
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.
7 jg.wp.4010 & 4044.13.odt
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 :
"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
8 jg.wp.4010 & 4044.13.odt
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 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
9 jg.wp.4010 & 4044.13.odt
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'. The Division Bench of
10 jg.wp.4010 & 4044.13.odt
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 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
11 jg.wp.4010 & 4044.13.odt
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 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
12 jg.wp.4010 & 4044.13.odt
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 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
13 jg.wp.4010 & 4044.13.odt
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 aforesaid position of law and the finding of
the said committee that caste of the petitioners and their forefathers is
consistently recorded as 'Mana' in their school and revenue records
during the period from 1944 to 2006, the committee, in our view, was
in error in rejecting the claim of the petitioner for 'Mana', Shceduled
Tribe. All the documents produced by the petitioners indicate the caste
'Mana' and therefore the committee ought to have validated the claim.
14. So far as the entry 'Hindu (Mana)' is concerned, it is neither
the finding of the scrutiny committee nor it is the fact that any separate
caste or tribe or sub-caste or tribe as 'Hindu (Mana)' exists in the State
of Maharashtra. Said caste 'Hindu (Mana)' is also not shown in the list
of Vimukta Jatis, Nomadic Tribes, Other Backward Classes or Special
Backward Classes maintained by the State of Maharashtra for grant of
benefits. The prefix 'Hindu" to (Mana) indicate the religion and it
obviously insignificant and is the result of lack of knowledge while
14 jg.wp.4010 & 4044.13.odt
writing entry. In our view, therefore, the committee was in error in
rejecting the claim of the petitioners. The order of the committee
cannot therefore be sustained and the petitioners are entitled to grant of
declaration and issuance of validity certificates.
15. In the result, writ petitions are allowed as under :-
(a) The orders dated 17-4-2013 passed by the Scheduled
Tribe Certificate Scrutiny Committee, Gadchiroli, Division
Nagpur invalidating the caste claim of the petitioners for
'Mana', Scheduled Tribe are hereby quashed and set aside.
(b) It is declared that the caste certificates dated
12-6-2012 issued by the Sub Divisional Magistrate,
Chandrapur in the name of the petitioners certifying that
they belong to 'Mana', Scheduled Tribe which is at serial no.
18 in the Constitution (Scheduled Tribes) Order, 1950 is
held to be valid.
(c) The Scheduled Tribe Certificate Scrutiny Committee,
Gadchiroli, Division Nagpur is, therefore, directed to
accordingly, issue caste validity certificates to the petitioners
15 jg.wp.4010 & 4044.13.odt
separately validating their claim for 'Mana', Scheduled Tribe
category within a period of four weeks from the date of
production of copy of this judgment before it.
(d) The respondent nos. 2, 3 and 7 are directed to release
all the documents and monetary benefits to the petitioners
as a candidates belonging to Scheduled Tribe category and
if any amount is recovered or deposited by the petitioners
for release of such documents, the same be refunded to the
petitioners.
16. Rule is made absolute in aforesaid terms with no order as
to costs.
JUDGE JUDGE
wasnik
