Bombay High Court
Chetan S/O Bhujangrao Magare vs 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. 4001 OF 2013
Chetan s/o Bhujangrao Magare,
aged about 19 years, Occ. Student,
R/o. Kalamgaon (Tukum), Tah. Sindewahi,
Distt. Chandrapur....... PETITIONER
...VERSUS...
1. Scheduled Tribe Certificate 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, Mumbai.
4. The Principal,
Yashwantrao Chauhan College of Engineering
Wanadongri, Hingna Road,
Nagpur.
5. The Registrar, Rashtra-sant Tukdoji
Maharaj University, Civil Lines,
Nagpur .. RESPONDENTS
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Shri P.P. Dhok, Advocate for the petitioner.
Shri N.S.Rao, AGP for Respondent Nos. 1 to 3
None for respondent Nos. 4 and 5
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CORAM: R. K. DESHPANDE AND
M.G.GIRATKAR, JJ.
th
DATE : 29 NOVEMBER, 2017 .
JUDGMENT (Per R.K.Deshpande, J.)
1] The claim of the petitioner for grant of validity
certificate as a person belonging to Mana - Scheduled Tribe,
which is an entry at Sr. No.18 in the Constitution Scheduled
Tribe Order, 1950, has been rejected by the Scrutiny
Committee at Gadchiroli by its order dated 06.06.2013 and
cancelled and confiscated the Caste Certificate, dated
16.06.2005 issued by the Sub Divisional Officer, Bramhapuri,
Distt. Chandrapur, which is the subject matter of challenge in
this petition.
2] Before the said Committee, the petitioner has
produced 8 documents, all indicating the caste "Mana" of the
petitioner and his paternal side/blood relatives. The oldest
entry is of the revenue record of 1921-22 in the name of
Bhiva s/o Krushna, great grandfather of the petitioner,
showing his caste as "Mana". The another entry is in the
name of Sakharam s/o Bhiva, grandfather of the petitioner, in
the record of 1943-44, showing his caste as "Mana". The
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third document is the school leaving certificate of 02.07.2008
in the name of Bhujangrao Magre, the father of the petitioner,
showing his caste as "Mana". Lastly, the validity certificate
dated 04.07.2008 issued by the Scrutiny Committee in the
name of Shailendra, the real brother of the petitioner,
validating his caste claim for "Mana - Scheduled Tribe.
3] In paragraph 14 of its order, the Committee
records the finding that the caste of the petitioner and his
forefathers is consistently recorded as 'Mana' in their school
and revenue records during the period 1921-2010, but
applying the affinity test, it rejects the claim recording the
reasons as under;
" (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
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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
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-
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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 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 :
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"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
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,
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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'.
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
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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 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
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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
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 not shown in the column
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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 above and the
finding of the Committee that in the documentary evidence
produced by the petitioner, his caste and his forefathers'
caste is consistently recorded as "Mana" in the school and
revenue record during the period from 1921 to 2010. The
Committee was in error in applying affinity test to reject the
claim of the petitioner for Mana - Scheduled Tribe. There is
not even a single document on record showing the caste of
the petitioner other than "Mana".
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14] The petitioner has produced caste validity
certificate dated 04.07.2008 in the name of Shailendra, the
real brother of the petitioner, validating his caste claim for
"Mana - Scheduled Tribe". The Committee rejects the said
claim holding that the said certificate was not issued by
following the procedure of conducting vigilance cell enquiry
under Rule 12 of the Maharashtra Scheduled Tribes
(Regulation of Issuance and Verification of ) Certificate
Rules, 2003. It is the discretion of the Committee to call for
the report from the Police Vigilance Cell after making enquiry.
If the Committee did not think it necessary while granting
validity certificate to the brother of the petitioner to conduct
Police Vigilance Cell enquiry, then it is not open now for the
Committee to reject the said certificate on the ground that no
enquiry was conducted. 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 and no different view could have been
taken, resulting in enormous situation that the brother of the
petitioner belongs to Mana-Scheduled Tribe, whereas the
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petitioner does not .
15] In the result, writ petition is allowed. The order
dated 06.06.2013 passed by the Scheduled Tribe Certificate
Scrutiny Committee, Gadchiroli, invalidating the caste claim
of the petitioner for Mana - Scheduled Tribe category is
hereby quashed as set aside and the following order is
passed.
(i) The Caste Certificate dated 16.06.2015
produced by the petitioner is held to be valid, certifying that
he belongs to Mana - Scheduled Tribe Category, which is an
entry at Sr.No. 18 of the Constitution Scheduled Tribe Order.
(ii) The Committee is directed to issue 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) Respondent Nos. 3 to 5 shall issue all the
documents to the petitioner in relation to his admission and
the result, if any, without insisting upon for payment of fees
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as a candidate belonging to 'open category' within the period
of two weeks from the date of production of this order without
waiting for the certificate of validity from the Scrutiny
Committee.
Rule is made absolute in these terms. No order
as to costs.
JUDGE JUDGE
Rvjalit
