Archana D/O Ashok Ghodmare vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 9168 Bom

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

                  Writ Petition No.3065 of 2013

  Archana d/o Ashok Ghodmare,
  Aged about 20 years,
  Occupation - Student,
  R/o Ballarpur,
  Tah. Ballarpur,
  Distt. Chandrapur.                              ... Petitioner


       Versus


  1. The Scheduled Tribe Caste
     Certificate Scrutiny Committee,
     Gadchiroli.

  2. The Principal,
     Prof. Ram Meghe College of
     Engineering,
     Badnera, Distt. Amravati.

  3. The Registrar,
     Sant Gadge Baba University,
     Amravati.                                    ... Respondents


  Ms P.D. Rane, Advocate for Petitioner.
  Shri V.P. Gangane, Assistant Government Pleader for Respondent 
  Nos.1 and 2.
  Shri J.B. Jaiswal, Advocate for Respondent No.3.




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               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 17-4-2013 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 13-4-2012 issued by the Sub-Divisional Officer,

Chandrpur, District Chandrapur, and produced by the petitioner

for validation.

2. Before the said Committee, the petitioner produced total

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

Tribe'. The oldest document is the school leaving certificate in

the name of Patru, the grandfather of the petitioner, containing

entry of 'Mana' on 3-7-1944. The another document is the land

record of the year 1950-51 in the same of Sego, the great

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grandfather of the petitioner, showing the caste 'Mana'. The

third document is the service book in the name of Patru, the

grandfather, containing the entry of "Hindu-Mana' on 16-9-1953,

and the school leaving certificate in the name of Ashok, the

father of the petitioner, containing the entry of 'Mana' on

3-7-1968. The Police Vigilance Cell conducted the home enquiry

and found that the entry 'Mana' is made in the name of Patru,

the grandfather of the petitioner, on 3-7-1944. There is not even

a single document containing the entry other than 'Mana', except

the entry in the service book showing 'Hindu-Mana'.

3. The Committee records the finding in para 14 of its

order that so far as the documentary evidence is concerned, the

caste of the petitioner and her forefathers is consistently

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

the period from 1944 to 2006. However, applying the affinity

test, the Committee rejects the claim for the following reasons :

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(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 No.268 and later on in the list of Special Backward Classes at Serial No.2 in relation to the State of Maharashtra, and

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(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

migration, we have held in para 7 of the said decision as under :

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"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.

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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 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.

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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 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

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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 this Court has held that it is not

open to the State Government or indeed to this Court to embark

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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

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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 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'."

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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

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

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fact that it is a tribe, the name of tribe is not 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. The solitary document of 'Hindu-Mana' is the entry in

the service book of Patru, the grandfather of the petitioner, made

on 16-9-1953. Prior to that, there is a document of school

leaving certificate in the name of Patru, the same person,

containing an entry of 'Mana' made on 3-7-1944. The prefix

'Hindu' denotes the religion and there is no separate caste or

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tribe as 'Hindu-Mana'. Obviously, prefix 'Hindu' to entry 'Mana'

is by the mistake and the Committee has committed an error in

relying upon such entry to reject the claim of the petitioner. The

Committee having held that all the other documents indicate the

caste 'Mana', the claim could not have been rejected in view of

the decision of the Apex Court in the case of Anand, cited supra.

The documents having probative value clearly establish the claim

of the petitioner for 'Mana, Scheduled Tribe'. The petitioner is,

therefore, entitled to reliefs.

14. The learned counsel for the petitioner invited our

attention to the order dated 27-4-2017 passed by this Court,

which is reproduced below :

" Heard.

By this Civil Application, the applicant seeks a direction against the respondent nos.2 and 3 to supply the original mark-sheet of the eighth semester, the provisional degree as also the college leaving certificate and other documents to the petitioner.

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According to the petitioner, the petitioner has completed the education in the Engineering course, in view of the interim orders passed by this Court. It is stated that as the petitioner would require the provisional degree and the original mark-sheet for either pursuing the higher education or for securing a job, it would be necessary to direct the respondent nos.2 and 3, to release the aforesaid documents in favour of the petitioner.

None has appeared on behalf of the College/Management though served.

Hence, in the circumstances of the case, we direct the Respondent No.2-College to supply the original mark-sheet and the other documents to the petitioner if the respondent-College has received the amount of difference of fee that is liable to be paid by the Government for the reserved category students, in respect of the petitioner. If the College has not received the said amount in respect of the petitioner, the petitioner would be required to pay the said amount and then it would be necessary for the College to release the original mark-sheet, College leaving certificate and the provisional degree in favour of the petitioner.

With direction to the respondent nos.2 and 3 to supply the documents, as sought by the petitioner in the manner stated herein-above, we dispose of the Civil

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Application."

The petitioner claims to have paid the amount of

difference of fee that she was liable to pay in terms of the

aforesaid order. It is not in dispute that upon production of caste

validity certificate, the petitioner is entitled to get the refund of

the said amount. In view of this, the appropriate directions will

have to be issued to the respondent No.2-College for refund of

the said amount.

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

terms :

(i) The order dated 17-4-2013 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 13-4-2013 issued by the

Sub-Divisional Magistrate, Chandrapur, 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

producing the copy of this judgment by the petitioner to

it.

(iv) The respondent No.2-College is directed to refund

to the petitioner the amount which she has deposited as

per the interim order dated 27-4-2017 passed by this

Court within a period of two weeks from the date of

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production of copy of this judgment before it. If the

amount is not refunded to the petitioner within the

stipulated period, the same shall carry interest at the

rate of 18% from the date of its deposit till its

repayment.

16. Rule is made absolute in the aforesaid terms. No order

as to costs.

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

Lanjewar, PS