Tinakumari D/O Balaji Kedar vs The Directorate Of Technical ...
2017 Latest Caselaw 9208 Bom

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

                               WRIT PETITION NO. 3765 OF 2013


 Tinakumari d/o. Balaji Kedar,
 Aged about 18 years, Occ. Student,
 r/o. Plot No.147, Shriramnagar
 Bhadrawati, Distt. Chandrapur.              .......                  PETITIONER


          ...VERSUS...


 1.The Directorate of Technical Education,
    Maharashtra State, Mumbai-400 001.

 2.The Director,
    Vishwakarma Institute of Technology,
    Pune.

 3.The Registrar,
    Pune University, Pune.

 4.The Scheduled Tribe Caste Certificate
    Scrutiny Committee, Gadchiroli,
    Through its Chairman.                .......                    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. 31.5.2013 passed by the 

Scheduled Tribe Caste Certificate Scrutiny Committee, Gadchiroli invalidating his

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caste claim 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.12.10.2010 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 nine

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

document is the Revenue record of 1918-19 in the name of Govinda, the great

grand father of the petitioner showing his caste as 'Mana'. The other documents

are : a copy of warrant, dt.10.11.1938 in the name of Govinda, the great grand

father of the petitioner showing his caste as 'Mana' and a copy of receipt

dt.29.11.1938 in the name of Govinda, the great grand father showing his caste as

'Mana'. The Sale deed dt.17.2.1947 in the name of Narayan, the grand father of the

petitioner was also produced showing his caste as 'Mana'. The order shows that

the sale deed dt.17.2.1947 in the name of Narayan shows the caste as 'Mane'. But,

upon verification of the documents, we are satisfied that the entry is of 'Mana'. All

these documents are of pre-Constitutional period. The petitioner submitted Caste

Validity Certificate dt.11.3.2008 in the name of her real brother Rupesh issued by

the said Committee validating his claim for 'Mana' Scheduled Tribe. The Police

Vigilance Cell conducted home inquiry and found the documents produced as

genuine.

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  3]                The Committee holds in para 15 that the caste of petitioner and her 

forefathers is consistently recorded as 'Mana' in their School and revenue records

during the period 1918-19 to 1938 and 1958 to 2004. The Committee, however,

rejects all 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

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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-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

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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 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 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

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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 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

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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 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.

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    13]               In view of the aforesaid law laid down and the finding of the 

Committee that the caste of the petitioner and her fore-fathers is consistently

recorded as 'Mana' in their School and revenue records during the period 1918-

19 to 1938 and 1958 to 2004, in our view, the Committee has fallen in error to

reject the claim of the petitioner for 'Mana' Scheduled Tribe.

14] The petitioner produced Caste Validity Certificate dt. 11.3.2008 in

the name of Rupesh, the real brother of petitioner validating his claim for 'Mana'

Scheduled Tribe. In para 19 of the order, it is dealt that the Validity Certificate

was issued without conducting Vigilance Inquiry and without considering the

Affinity test. It is further held in the said para that 'Mana' tribe claim of the

validity holder has been held to be valid as per decision of the Hon'ble Supreme

Court in C.A. No.5270 of 2004.

15] Vide Rule 12 of the Maharashtra Scheduled Tribes (Regulation

of Issuance and Verification of) Certificate Rules, 2003, a discretion is conferred

upon the said Committee to take a decision as to whether to conduct inquiry

through Police Vigilance Cell. If the Committee is satisfied on the basis of

documentary evidence produced before it that the claim is to be validated, it

need not conduct inquiry through Police Vigilance Cell. If the Committee has not

conducted inquiry while issuing certificate, dt.11.3.2008 in the name of real

brother of the petitioner, it is not now open for the Scrutiny Committee to create

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an anomalous situation where the real brother of the petitioner belongs to

'Mana' Scheduled Tribe; whereas the petitioner does not. The Committee is

bound by the Validity Certificate issued in view of 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

finding of the Committee cannot, therefore, be sustained.

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

order :

i) The order dated 31.5.2013 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

12.10.2010 produced by the petitioner and issued by the Sub

Divisional Officer, Warora 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.

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                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 the copy 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

two weeks from the date of production of copy of this

Judgment before them.

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

                                      JUDGE                         JUDGE

 jaiswal