Bombay High Court
Ku. Kalyani D/O Ramesh Nannaware ... vs Scheduled Tribe Certificates ... 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.3730 of 2013
Ku. Kalyani d/o Ramesh Nannaware,
Aged about 19 years,
Occupation - Student,
through natural guardian
father Shri Ramesh Jagannath
Nannaware,
Age 58 years,
Occupation - Cultivator,
R/o Rajoli, Tah. Mul,
Distt. Chandrapur. ... Petitioner
Versus
1. Scheduled Tribe Certificates
Scrutiny Committee,
Gadchiroli, Division Nagpur,
through its Chairman,
Office at Complex Area,
Near Zilla Parishad Sankul,
Gadchiroli,
Tq. & Distt. Gadchiroli.
2. State of Maharashtra,
through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
3. The Director,
Technical Education,
Maharashtra State,
Mumbai,
3, Mahapalika Marg,
Post Box No.1967,
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Mumbai-400 001.
4. The Principal,
Priyadarshani Institute of
Engineering & Technology,
Nagpur )
Lokmanya Tilak Janakalyan
Shikshan Sanstha, Nagpur),
Hingna Road, Nagpur,
Tq. & Distt. Nagpur.
5. The Registrar,
Rashtrasant Tukdoji Maharaj
University,
Civil Lines, Nagpur.
6. Sub-Divisional Officer,
Warora, Tah. Warora,
Distt. Chandrapur. ... Respondents
Shri P.P. Dhok, Advocate for Petitioner.
Shri A.M. Deshpande, Assistant Government Pleader for
Respondent Nos.2, 3 and 6.
Shri P.B. Patil, Advocate for Respondent No.5.
Coram : R.K. Deshpande & M.G. Giratkar, JJ.
Date : 29th November, 2017
Oral Judgment (Per R.K. Deshpande, J.) :
1. The challenge in this petition is to the order
dated 31-5-2013 passed by the Scheduled Tribe Certificate
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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 13-9-2012 issued by the Sub-Divisional Officer,
Warora, District Chandrapur, and produced by the petitioner for
validation.
2. Before the Committee, the petitioner produced total
thirteen documents in support of his caste claim for 'Mana,
Scheduled Tribe'. The oldest document was the school leaving
certificate dated 4-2-1929 in the name of Jagannath, the
grand-father of the petitioner. The another document in his
name was the revenue record of the year 1943-44. The school
leaving certificate in the name of Ramesh, the father of the
petitioner, was dated 9-5-1961. All these documents clearly
indicated the caste none other than 'Mana'. The Police Vigilance
Cell conducted the home enquiry, which revealed two more
documents, viz. - the extracts of school admission register in the
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name of Atmaram and Rajaram, the grand-fathers of the
petitioners, showing their caste as 'Mana', recorded on 4-2-1929.
The petitioner produced three caste validity certificates
dated 19-10-2005, 19-11-2007 and 18-2-2008 in the name of
Suresh, the uncle; Shital, the sister; and Shilpa, the another
sister, validating their claim for 'Mana, Scheduled Tribe'.
3. The Committee records the finding in para 14 of its
order that the caste of the petitioner and her forefathers is
consistently recorded as 'Mana' in their school and revenue
records during the period from 1929 to 2010. However, it
rejects the claim of the petitioner 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,
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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 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 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
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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
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
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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.
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
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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
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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
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
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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
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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. 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 Classes, and though the petitioner has established that
he belongs to 'Mana' community, it is not established that he
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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', 'Gond Mana', 'Mani/Mane', etc., for
the purposes of grant of benefits available to a
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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
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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
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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 the light of the decision of the Apex Court in Anand's
case, cited supra, and the finding recorded by the Committee in
para 14 of its order that the caste of the petitioner and
forefathers is consistently recorded as 'Mana' in their school and
revenue records during the period from 1929 to 2010, the
Committee was, in our view, in error in invoking the affinity test
to reject the claim of the petitioner. The overwhelming evidence
produced on record establishes the claim of the petitioner for
'Mana, Scheduled Tribe'.
14. The said Committee ought to have seen that the caste
validity certificates were issued in the name of the real uncle and
sisters of the petitioner, validating their claim for 'Mana' on
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19-10-2005, 19-11-2007 and 18-2-2008. In view of the decision
of the Division Bench 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, the said
Committee had no option but to hold that the petitioner has
established her claim for 'Mana, Scheduled Tribe', as its rejection
would amount to creating anomalous situation that the blood
relatives of the petitioner are declared as 'Mana, Scheduled
Tribe', whereas the petitioner is not.
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, is hereby quashed and set
aside.
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(ii) The certificate dated 13-9-2012 issued by the
Sub-Divisional Officer, Warora, District Chandrapur,
certifying that the petitioner belongs to caste 'Mana',
Scheduled Tribe, which is an entry at Serial No.18 in the
Constitution (Scheduled Tribes) Order, 1950, is held to
be valid, and it is declared that the petitioner has
established her claim for 'Mana', Scheduled Tribe.
(iii) The Committee is directed to issue a validity
certificate in the name of the petitioner accordingly
within a period of one month from the date of
production of the copy of this judgment by the petitioner
before it.
(iv) The respondent Nos.3 to 5 are directed to release
all the documents and concessions to the petitioner, if
they are withheld for want of caste validity certificate,
within a period of two weeks from the date of
production of the copy of this judgment by the petitioner
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before them, by treating the petitioner as a candidate
belonging to 'Mana, Scheduled Tribe'.
16. Rule is made absolute in the aforesaid terms. No order
as to costs.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar, PS
