Ruchika D/O Jayantrao Wagh, Thr. ... vs The Scheduled Tribe Caste ...
2017 Latest Caselaw 9202 Bom

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

                               WRIT PETITION NO. 3635 OF 2013


 Ruchika d/o. Jayantrao Wagh,
 Aged about 17 years, Occ. Student,
 Through natural guardian father
 Mr.Jayantrao s/o. Omkar Wagh,
 r/o. 0Q9, SRPF Group No.4,
 Hingna Road, Nagpur.            .......                   PETITIONER


          ...VERSUS...


 1.The Scheduled Tribe Caste Certificate
    Scrutiny Committee, Adiwasi Vikas
    Bhavan, Giripeth, Nagpur-440010.

 2.Deputy Director of Higher Education,
    Nagpur.

 3.The Principal,
    Dharampeth Science College,
    Ambazari, Nagpur.

 4.The Registrar,
    Rashtrasant Tukadoji Maharaj Nagpur
    University, Nagpur.                 .......            RESPONDENTS

 _____________________________________________________________________-
                    Ms P.D.Rane, Advocate for the petitioner.
                    Mr.N.S.Rao, AGP for Respondent Nos. 1 & 2.
                    Mr.Bhushan Dafle, Advocate h/f. Mr.P.B.Patil, Advocate for 
                    Respondent No.4.
 ___________________________________________________________________________


                                           CORAM: R. K. DESHPANDE AND
                                                   M.G.GIRATKAR, JJ.

DATE : 30/11/2017.

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 ORAL JUDGMENT    (Per R.K.Deshpande, J.)


 1]                The petitioner challenges the Order dt. 20.6.2013 passed by the 

Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur invalidating the

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.19.12.2009 issued by the Sub Divisional

Officer, Katol, District Nagpur certifying that the petitioner belongs to 'Mana'

Scheduled Tribe Category.

2] Before the said Committee, the petitioner produced twenty

documents in support of her claim for 'Mana' Scheduled Tribe. The oldest

documents were : the birth extract in respect of male child born to petitioner's

paternal great grand father Ukundya showing caste 'Mana' on 7.4.1926 and the

birth extract in respect of male child born of applicant's paternal grand father

Onkar Ukundya showing caste 'Mana' on 14.8.1949. The another document is

School Leaving Certificate in the name of paternal uncle Ramesh Onkar Wagh

recording entry as 'Hindu Mana' on 3.7.1962. The petitioner produced two Validity

Certificates : (i) dated 19.10.2005 in the name of Vilas Onkarrao Wagh, the

paternal uncle of petitioner and (ii) dated 17-7-2006 in the name of Jayant Onkar

Wagh, the father of petitioner.

3] In respect of entry dt.14.8.1949 in the name of paternal grand father

Onkar, the Committee holds that, in the School record, the caste was recorded as

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'Mani'. So far as entry dt.7.4.1926 in the name of Ukundya, the great grand father

is concerned, it holds that the caste of son Gajanan Ukundya is recorded as

'Mane' in the year 1929. It also holds that there is correction in the caste column

of School record in respect of paternal uncle Ramesh Onkar. It holds that caste

'Mani' and 'Mane' are not included in the list of Scheduled Tribes of Maharashtra.

The Committee holds that there are inherent discrepancies in the caste entries

and in Vidarbha region, non-tribals such as 'Mana', 'Mane', 'Mani', 'Mani kunbhi',

'Kunbhi' etc. have tried to grab the concessions meant for Scheduled Tribes.

4] In respect of Validity Certificates in the name of father and paternal

uncle relied upon by the petitioner, the Committee holds that every case is to be

decided on its own merits and since there are entries like 'Mani' and 'Mane', the

Validity Certificates issued in the name of father and paternal uncle are required to

be revoked. The Committee applies the Affinity test and rejects the claim for

'Mana' Scheduled Tribe.

5] The oldest document is the birth register extract in the name of

paternal great grand father Ukundya showing caste as 'Mana' on 7.4.1926.

Another entry is in the name of paternal grand father Onkar showing caste as

'Mana' on 14.8.1949. The entry of 1929 relied upon by the Committee is obviously

the second entry showing the caste as 'Mani' and the entry of 1932 is the third

entry showing caste as 'Mane'. Except these two entries, all other entries indicate

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the caste 'Mana'. It is neither finding recorded by the Scrutiny Committee nor it is

a fact that any separate caste/tribe or sub-caste/tribe as 'Mane' or 'Mani' exists in

the State of Maharashtra. Such castes are also not shown in the list of Vimukta

Jatis, Nomadic Tribes, Other Backward Classes or Special Backward Classes

maintained by the State Government for grant of benefits. In the publication of

Anthropological Survey of India styled as "People of India (Maharashtra Vol.

No.XXX, para, the caste 'Mana' is dealt with and it recites that 'Mana' is also

shown as 'Mane' or 'Mani". It states that etymologically the word 'Mana' was

probably derived from the word 'Mannya' or 'Mann' i.e. honour, which the

Community held in high esteem. In view of this and the fact that the oldest entry

shows the caste as 'Mana' and all other entries except two, show the caste as

'Mana' we are of the view that the Committee was in error in relying on these two

entries to reject the claim of the petitioner.

6] In the decision of this Court in the case of Mana Adim Jamat Mandal v.

State of Maharashtra and others, 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 &

Ors. v. Mana Adim Jamat Mandal, reported in (2006) 4 SCC 98, it was the

argument advanced that there are non-tribal communities, like 'Badwaik Mana',

'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana',

'Mani'/'Mane', etc., in Vidarbha Region, and unless it is shown that they belong to

'Mana, Scheduled Tribe' in Entry No.18, they are not entitled to the benefits of

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Scheduled Tribe. It was also pointed out that 'Mana' Community is also included

in the lists of Other Backward Classes and Special Backward Classes, and unless

the affinity is established with 'Mana, Scheduled Tribe', which is an entry at serial

No.18, the benefits meant for it cannot be availed.

7] We have considered the aforesaid aspect in para 13 of the decision in

the case of Gajanan s/o Pandurang Shende v. The Head-Master, Govt. Ashram

School, Dongargaon Salod, Tah. Sindewahi, Distt. Chandrapur, and others,

rendered in Writ Petition No.3308 of 2013 on 8-11-2017, and we, therefore,

reproduce the said paras as under :

"13. In the decision of the Division Bench of this Court in the case of Mana Adim Jamat Mandal v. State of Maharashtra and others, reported in 2003(3) Mh.L.J. 513, it is held in para 22 as under :

"22. It is clear from the plain reading of the aforesaid propositions that the Supreme Court was of the view that Dina's case - 38 ELR 212 was not decided correctly to the extent it held that enquiry was permissible and evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to be. In fact the court has clearly observed that no enquiry at all is permissible and no evidence can be let in, in the matter. In our

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view the Supreme Court decision in second Dina's case i.e. Dadaji @ Dina vs. Sukhdeo Baba and others which considered the effect of omission of the word "including", also cannot be taken to be good law after the decision of the Constitution Bench in State of Maharashtra vs. Milind, though the said decision is not expressly overruled. The Constitution Bench overruled the first Dina case i.e. Dina vs. Narayan Singh with reference to Entry 12 of the Scheduled Tribes Order though the court did not specifically refer to second Dina's case. It is needless to say that the same stood impliedly overruled as the law declared by the Constitution Bench in Milind's case was contrary to what was stated in second Dina's case."

In para 24 of the said decision, this Court has held as under :

"24. ... In any event even if it is assumed that there was a separate community which is called as Mana in Vidharbha region which has no affinity with Gond tribe that community would also fall within the scope of 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. 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

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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. The Mana community in the instant case having been listed in the Scheduled Tribes Order as it now stands, 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."

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'."

The Apex Court has 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'. The Division Bench of this Court in Mana Adim Jamat

Mandal's case, cited supra, 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 benefits of the Scheduled Tribes Order. Following

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this decision, we have held in para 15 of Gajanan's case, cited supra, that the

Committee was clearly in error in holding - (a) that 'Mana' Community was

included in the list of Other Backward Classes and later on in the list of Special

Backward Classes, and (b) that though the petitioner has established that he

belongs to 'Mana' Community, it is not established that he belongs to 'Mana,

Scheduled Tribe'.

8] In para 18 of Gajanan's case, we have considered the decision of the

Apex Court in E.V. Chinnaiah v. State of Andhra Pradesh & Ors., reported in

2004(9) SCALE 316, and it is held 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-

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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 'Mana' Community throughout the State is a class as

a whole, and to artificially sub-divide it to exclude different groups, like 'Badwaik

Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond

Mana', 'Mani/Mane', etc., for denying the benefits of recognized Scheduled Tribe is

not only without any authority but violative of Articles 14 and 342 of the

Constitution of India.

9] In para 19 of Gajanan's case, 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

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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, the distinction between caste

and tribe is ignored.

10] In view of the aforesaid position of law and the fact that there is no

separate caste, sub-caste, tribe or sub-tribe, like 'Mani' or 'Mane' prevailing in the

State of Maharashtra, and that such entry like 'Mani' or 'Mane" is not included

either in the lists of Vimukta Jatis, Nomadic Tribes, Other Backward Classes or

Special Backward Classes in the State of Maharashtra, we are of the view that the

Committee was in error in holding that the petitioner belongs to 'Mani' or 'Mane',

which is not a tribe 'Mana' in Entry No.18 in the Constitution (Scheduled Tribes)

Order. In our view, the confusion prevailing in respect of entry like 'Mani' or 'Mane'

is absolutely clarified in all the subsequent documents pointed out earlier showing

the caste of the petitioner and his blood relatives as 'Mana' in all other documents

and the Committee, therefore, could not have rejected the claim of the petitioner

by taking into consideration the entries showing the caste 'Mani' or 'Mane'.

11] On the aspect of primacy of the documents over the Affinity test,

we rely on 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 applying the broad parameters laid down therein, we hold that the

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documents produced by the petitioner clearly establish her claim for 'Mana'

Scheduled Tribe. The Committee was in error in applying the Affinity test to

reject the documents.

12] On the aspect of two Caste Validity Certificates : one in the name

of father and another in the name of real paternal uncle, in our view, the

controversy is covered by the decision of 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. In the absence of finding

recording fraud or misrepresentation in getting the Validity Certificates by the

father and paternal uncle, in our view, the Committee could not have taken a

different view creating an anomalous situation that the caste of father and

paternal uncle is 'Mane' Scheduled Tribe whereas that of the petitioner is not.

The finding of the Committee rejecting the claim on the basis of Validity

Certificates cannot be sustained and the same will have to be set aside.

13] In the result, this writ petition is allowed in terms of the following

order :

i) The order dated 20.6.2013 passed by the Scheduled

Tribe Caste Certificate Scrutiny Committee, Nagpur, invaliding

the caste claim of the petitioner for 'Mana' Scheduled Tribe

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category is hereby quashed as set aside.

ii) It is declared that the Caste Certificate dated

19.12.2009 produced by the petitioner and issued by the Sub

Divisional Officer, Katol, District Nagpur certifying that she

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.1/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. 2 to 4 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

two weeks from the date of production of this Judgment before

them.

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   16]              Rule is made absolute in these terms.  No order as to costs. 

            




                                    JUDGE                     JUDGE

 jaiswal