Bombay High Court
Kunal S/O Kawaduji Khadsang vs The Directorate Of Technical ... on 30 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3637 OF 2013
Kunal s/o. Kawaduji Khadsang,
Aged about 18 years, Occ. Student,
r/o. Masa Road, Chimur,
Distt. Chandrapur. ....... PETITIONER
...VERSUS...
1.The Directorate of Technical Education,
Maharashtra State, Mumbai-400 001.
2.The Principal,
Government College of Engineering,
Ballarsha Road, Chandrapur.
3.The Vice-Chancellor,
Gondwana University,
Gadchiroli.
4.The Scheduled Tribe Caste Certificate
Scrutiny Committee, Gadchiroli, ....... RESPONDENTS
_____________________________________________________________________-
Ms P.D.Rane, Advocate for the petitioner.
Mr.N.S.Rao, AGP for Respondent Nos. 1 & 4.
___________________________________________________________________________
CORAM: R. K. DESHPANDE AND
M.G.GIRATKAR, JJ.
DATE : 30/11/2017.
ORAL JUDGMENT (Per R.K.Deshpande, J.)
1] The petitioner challenges the Order dt. 6.6.2013 passed by the
Scheduled Tribe Caste Certificate Scrutiny Committee, Gadchiroli invalidating the
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caste claim of the petitioner for 'Mana' Scheduled Tribe, which is an entry at Serial
No.18 in the Constitution Scheduled Tribe Order, 1950 and cancelling and
confiscating the Caste Certificate, dt.15.7.2009 issued by the Sub Divisional
Officer, Warora, District Chandrapur certifying that the petitioner belongs to 'Mana'
Scheduled Tribe Category.
2] Before the said Committee, the petitioner produced fourteen
documents in support of his claim for 'Mana' Scheduled Tribe. The Police
Vigilance Cell conducted the home inquiry and found that, in the Pre-
Constitutional documents, the caste entered is of 'Mana'. The oldest entry is in the
name of 'Doma Katu', the great grand father of petitioner, which is the revenue
record of 1918-19 showing his caste as 'Mana'. The another entry is the birth
Certificate of 1938 in the name of Sakharam, the great grand father of petitioner
recording his caste as 'Mana'. The extracts of School admission register in the
name of Kawadu, the father of petitioner and Sonabai, the aunt of petitioner show
the caste recorded as 'Mana' on 11.7.1969 and 17.7.1965 respectively. The
petitioner produced Caste Validity Certificate dt.2.11.2006 issued in the name of
Kawadu, the father of petitioner validity showing caste 'Mana' Scheduled Tribe.
3] The Committee holds in para 15 of it's oprder that the caste of
petitioner and his forefathers is consistently recorded as 'Mana' in their School
and revenue records during the period 1918-19 to 2004. The Committee, however,
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rejects these documents by applying Affinity test and records 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 her or her 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 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
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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-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 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
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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 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 :
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"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 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'.
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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 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
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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 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 all the fourteen documents produced by the petitioner, the
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caste is shown as 'Mana' except one in the name of petitioner himself, which is
the extract of School admission register, in which entry 'Mana Hindu' was
recorded on 1.7.2000. Though the Police Vigilance Cell conducted home inquiry
and the documents are found to be genuine showing the caste as 'Mana', in
view of decision of the Apex Court in the case of Anand vs. Committee for
Scrutiny and Verification of Tribe Claims and Others reported in (2012) 1 SCC
113, the Committee could not have invoked the Affinity test when the
documentary evidence produced on record clearly establish the claim of
petitioner for 'Mana' Scheduled Tribe. The finding of the Committee rejecting the
documents cannot, therefore, be sustained.
14] In view of the decision of the Division Bench of this Court in the
case of Apoorva d/o. Vinay Nichale .vs. Divisional Caste Certificate Scrutiny
Committee No.1 and Others reported in 2010 (6) Mh.L.J. 401, it was not
possible for the Committee to take a different view of the matter when the father
of petitioner was granted Validity Certificate on 2.11.2006 for 'Mana' Tribe
thereby creating an anomalous situation that the father belongs to 'Mana'
Scheduled Tribe; whereas the petitioner does not. We cannot sustain such
finding of the Committee.
15] In the result, this writ petition is allowed in terms of the following
order :
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i) The order dated 6.6.2013 passed by the Scheduled
Tribe Caste Certificate Scrutiny Committee, Gadchiroli,
invaliding the caste claim of the petitioner for 'Mana'
Scheduled Tribe category is hereby quashed as set aside.
ii) It is declared that the Caste Certificate dated 15.7.2009
produced by the petitioner and issued by the Sub Divisional
Officer, Warora, District Chandrapur certifying that he belongs
to 'Mana' Scheduled Tribe category, which is an entry at
Sr.No. 18 of the Constitution Scheduled Tribe Order, 1950, is
held to be valid.
iii) Respondent No.4/Committee is directed to issue Caste
Validity Certificate accordingly in the name of the petitioner for
'Mana' Scheduled Tribe within a period of four weeks from the
date of production of this Judgment before the Committee.
iv) Respondent Nos. 1 to 3 are directed to release all the
documents and concessions in favour of the petitioner as a
candidate belonging to Scheduled Tribe Category, if they are
withheld for want of Caste Validity Certificate, within a period of
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two weeks from the date of production of this Judgment before
them.
16] Rule is made absolute in these terms. No order as to costs.
JUDGE JUDGE
jaiswal
