Bombay High Court
Maroti S/O Vyankati Gaikwad And ... vs Dy. Director And Member ... on 15 September, 2023
Bench: Vinay Joshi, Avinash G. Gharote, Anil S. Kilor
2023:BHC-NAG:13853-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.12/2022
PETITIONERS 1. Maroti S/o Vyankati Gaikwad,
Aged about 62 years, Occ. Retired.
2. Ganesh S/o Maroti Gaikwad
Aged about 38 years, Occ. Service.
3. Archana D/o Maroti Gaikwad,
aged about 33 years, Occ. Service.
All R/o Dongarkherda, Tah. Kalamb,
District Yavatmal.
...Versus...
RESPONDENTS 1. Deputy Director & Member-Secretary,
The Scheduled Tribe Caste Certificate
Scrutiny Committee, Amravati, opposite of
office of State Information Commission,
Chaprashipura, Amravati.
2. President/Secretary, Singhgad
Technical Education Society,
Erandwane, Smt. Khilare Marg, Opp.
Karve Road, Pune - 411004.
3. Principal, Singhgad Institute of
Technology, Kusagaon (Bk.), Tah.
Lonawada, District Pune.
4. Registrar, Savitribai Fule
University, Pune, Ganeshkhind Road,
Ganeshkhind, Pune - 411007.
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2
5. Zilla Parishad, Yavatmal, through
its Chief Executive Officer, Arni Road,
Yavatmal - 445001.
6. Education Officer (Primary), Zilla Parishad,
Yavatmal, Arvi Road, Yavatmal.
Mr. A.V. Anturkar, Sr. Advocate a/b Mr. Yatin Malvankar and Mr. Anant
Ramteke, Advocates for petitioners
Mr. S.P. Bhandarkar, Advocate with Mr. Manish Shukla, Advocate (Assist) to
petitioners
Mr. S.R. Narnaware and Mr. Ram Karode, Advocates (Assist) to petitioners
Ms P.D. Rane and Mr. Ashwin Deshpande, Advocates for intervenor
Mr. N.D. Jambhule and Mr. S.P. Khare, Advocates for intervenor
Mr. P.P. Dhok, Advocate for intervenor
Mr. Nitin Meshram Advocate h/f Mr. S.D. Borkute, Advocate for intervenor
Mr. S.M. Ukey, Addl. G.P. & Mrs. K.R. Deshpande, AGP for respondent no.1/State
Mr. Sumit Parate and Mr. A.R. Patne, Advocates for respondent nos.2 and 3
Mr. S.P. Dharmadhikari, Senior Advocate a/b Mr. M.M. Sudame and
Mr. Akshaya M. Sudame, Advocates for intervenor
Mr. Uday Warunjikar, Advocate with Mr. Rajendra Maraskolhe and Mr. S.A.
Marathe, Advocates for intervenor
CORAM : VINAY JOSHI,
AVINASH G. GHAROTE
AND
ANIL S. KILOR, JJ.
Date of reserving the order : 03/07/2023
Date of pronouncing the order : 15/09/2023
5
ORDER (PER : AVINASH G. GHAROTE, J.)
1. This is a reference made by the Hon'ble the Chief Justice
upon the request of the learned Division Bench in Maroti S/o
Vyankati Gaikwad and others Vs. Deputy Director & Member-
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Secretary, The Scheduled Tribe Caste Certificate Scrutiny Committee,
Amravati and others (Writ Petition No.12/2022) to render our
opinion as regards the questions posed therein, which are as under :
(A) Whether Gajanan Shende, Gitesh Ghormare and Umesh
Jambhore militate against the authoritative exposition of 5
the Hon'ble Supreme Court, to the extent certain groups
or communities like Mani, Mane, Mana-Kunbi etc. are
held to be the Scheduled Tribe (Mana) included as
Entry 18 in the Presidential Order as amended ?
(B) Whether extensive reference and reliance on the
publications, the Government Resolution/s and the
answers elicited from the Scrutiny Committee during the
proceedings partake the character of a post Presidential
Order Enquiry and if the answer is in the affirmative, 15
whether such an enquiry is permissible to interpret or
construe the entries in the Presidential Order ?
(C) Whether the exercise of interpreting and construing
documentary material can transgress in the arena of 20
inquisitorial enquiry post Presidential Order ?
(D) The contours, scope, ambit and limitations of the enquiry
assuming such an enquiry is permissible of interpreting
and construing documentary material which record a 25
particular caste or tribe ?
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2. The learned Division Bench noticed an apparent conflict
between the views as expressed by the Hon'ble Apex Court in :
(i) B. Basavalingappa Vs. D. Munichinnappa and others, AIR 1965 SC
1269,
(ii) Bhaiya Lal Vs. Harikishan Singh and others AIR 1965 SC 1577 5
and
(iii) State of Maharashtra Vs. Milind and others (2001) 1 SCC 4
on the one hand, which view has been followed in subsequent
judgments and
(a) Gajanan s/o Pandurang Shende Vs. Head Master, Govt. Ashram 10
School, Dongargaon Salod and others 2018 (2) Mh.L.J. 460,
(b) Gitesh s/o Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee, Nagpur and others 2018 (4) Mh.L.J. 933 and
(c) Umesh s/o Ganeshrao Jambhore Vs. Vice-Chairman/Member-
Secretary, Scheduled Tribe Caste Certificate Scrutiny Committee, 15
Amravati 2022 (3) Mh.L.J. 31 : 2022 SCC OnLine Bom. 305
on the other hand and being unable to agree with the views as
expressed in Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School, Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee and Umesh Ganeshrao Jambhore Vs. 20
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
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Scrutiny Committee (supra) has formulated the above questions for
an opinion of a larger Bench.
The arguments of the respective sides are as under :
3. Arguments on behalf of the petitioners, who support the
views expressed in Gajanan Pandurang Shende Vs. Head Master, 5
Govt. Ashram School, Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee and Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee (supra).
3.1. Mr. A.V. Anturkar, learned Senior Counsel supporting 10
the views as expressed in Gajanan Pandurang Shende Vs. Head
Master, Govt. Ashram School, Gitesh Narendra Ghormare Vs.
Scheduled Tribe Certificate Scrutiny Committee and Umesh
Ganeshrao Jambhore Vs. Vice-Chairman/Member-Secretary,
Scheduled Tribe Caste Certificate Scrutiny Committee (supra) 15
contends that the entries made in the Presidential Orders issued in
exercise of the powers under Article 342(2) of the Constitution, one
of which is the notification dated 05/09/1950 published in the
Gazette of India Extraordinary Part-II-Section 3 and subsequent
additions to it by the Parliament are sacrosanct. There, however, are 20
certain exceptions/fields where enquiry is permissible and Gajanan
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Pandurang Shende Vs. Head Master, Govt. Ashram School, Gitesh
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee and Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee (supra) are within the permissible bounds of 5
enquiry. Article 342(2) prohibits only variation in the notification
issued under Article 342(1). Prohibition is only variation. Anything
other than variation is allowed. 'Mana' was not included in the
original notification dated 06/05/1950, but was included
subsequently by an Act of Parliament by the Scheduled Castes and 10
Scheduled Tribes Orders (Amendment) Act No.108 of 1976 as item
no.18 in Part IX, which were entries for the State of Maharashtra.
Since there was no separate entry for 'Mana' it had to be
interconnected to the entry 'Gond Rajgond' as the punctuation mark
'(comma)' has a limited role and therefore affinity had to be 15
established. The High Court has plenary jurisdiction and no
provision can come in its way for doing complete justice. The
permissible exceptions to the restriction contemplated by
Article 342(2), which he terms as 'Zones of Interference' according
to him have been spelt out in various judicial pronouncements. 20
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(a) whereas according to him, what has been stated in B.
Basavalingappa Vs. D. Munichinnappa (supra) which is a judgment
by the learned Constitutional Bench of the Hon'ble Apex Court,
para 6 thereof lays down the prohibited zone, para 7 when it says
that 'But when it is not disputed that there was no caste specifically 5
known as Bhovi in the Mysore State before 1956, the only course
open to the Court's to find out which caste was meant by Bhovi is to
take evidence in that behalf,' creates a zone of interference by the
Courts by permitting an enquiry to be made and determination as to
which caste was meant by the word 'Bhovi' was permissible; (b) 10
since the President could not have included in the order a non
existent caste, it meant that the word 'Bhovi' related to some caste in
Mysore as it was before 1956 and the Courts will therefore have to
establish the identity of that caste which could only be done by
evidence (para 10); (c) the third zone of interference while 15
considering the entries in this regard was not to attach any
importance to difference in spelling in English, for example the entry
Bhovis could be the same as Bovis; (d) the evidence to establish the
community in the entry in the Presidential order could be
considered. Thus B. Basavalingappa Vs. D. Munichinnappa (supra) 20
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according to him, lays down several exceptions to the established
rule that the Presidential orders and the entries issued under Article
342(2) were sacrosanct. Bhaiya Lal Vs. Harikishan Singh (supra)
which is also by a Constitution Bench, according to him has a
distinguishing feature from B. Basavalingappa Vs. D. Munichinnappa 5
(supra) in as much as in Bhaiya Lal Vs. Harikishan Singh (supra) the
plea was for recognising Dohar caste as a sub- caste of Chamar caste
which had an entry in the Presidential Order as against which in B.
Basavalingappa Vs. D. Munichinnappa (supra) the entry of caste
Bhovi was already included in the Presidential order and the identity 10
of the caste as Voddar was the issue. Parsram Vs. Shivchand (supra)
only followed Basavalingappa Vs. D. Munichinnappa and Bhaiya Lal
Vs. Harikishan Singh (supra). Srish Kumar Choudhury Vs. State of
Tripura and others, 1990 (Supp) SCC 220 while it overrules Dina Vs.
Narayan Singh and another (1971) 38 ELR 212 and Bhaiya Ram 15
Munda Vs. Anirudh Patar and others 1970 (2) SCC 825 according to
learned Senior Counsel reiterates that scope of enquiry and
admissibility of evidence is confined within the limitations indicated
and therefore enquiry is permissible. Nityanand Sharma and another
Vs. State of Bihar and others (1996) 3 SCC 576 again reiterates that 20
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evidence may be admissible to a limited extent of finding out
whether the community which claims the status as scheduled caste
or scheduled tribe, was, in fact, included in the schedule concerned.
3.2. In Mana Adim Jamat Mandal Vs. State of Maharashtra
and others 2003 (3) Mh.L.J. 513 (supra) question was whether the 5
'Mana' community in Maharashtra is a sub-tribe of 'Gond' and is a
scheduled tribe or not, which it was held not to be so, in view of the
punctuation mark comma (,) between one entry and another in the
group in entry 18, signifying that each one of them is deemed to be a
separate scheduled tribe by itself. Relying upon para 28 in State of 10
Maharashtra Vs. Milind (supra) which is again a Constitution Bench
judgment, it is submitted that the exceptions as indicated in the
earlier two Constitution Bench decisions in B. Basavalingappa Vs. D.
Munichinnappa and Bhaiya Lal Vs. Harikishan Singh (supra) were
not only recognised but also preserved and therefore the exceptions 15
as indicated therein regarding interference continue to hold the
field. State of Maharashtra and another Vs. Keshao Vishwanath
Sonone and another 2021 (4) ALL MR 784 (S.C.) : (2021) 13 SCC
336 according to learned Senior Counsel does not even partly
overrule Mana Adim Jamat Mandal Vs. State of Maharashtra (supra) 20
as it speaks about and considers State of Maharashtra and others Vs.
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Mana Adim Jamat Mandal (2006) 4 SCC 98 in the factual context of
nature of the entry 'Mana' in the Presidential notification which is
held to be an independent entry, as compared to the entry in respect
of 'Gond Gowari' which is held to be related to the entry 'Gond' on
account of it being a sub-tribe of 'Gond' for which reason its affinity 5
with the entry 'Gond' cannot be ignored. The zones of interference
permissible as per B. Basavalingappa Vs. D. Munichinnappa (supra)
and other judgment's referred to above are preserved till date.
3.3. In so far as Question- D under reference is concerned, it
is submitted that it is not required to be answered as it considers an 10
uncertain situation which should be left to posterity, to be answered
on the exceptional circumstances which may then exist.
3.4. The exception/green zone as contemplated in
B. Basavalingappa Vs. D. Munichinnappa (supra) is not exhaustive,
and there can be other situations where, in respect of an entry, 15
exceptional circumstances can be shown, inviting the court to
interfere under its plenary jurisdiction. To give an illustration, he
states that the working time of the High Court is from 10:30 AM till
4:30 PM. However, in exceptional circumstances, not only the High
Court but even the Supreme Court has assembled and taken matters 20
at all odd hours after the working hours.
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3.5. In reference to Question-A, it is contended that Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School (supra)
holds that under the entry "Mana'', since it relates to a community,
every thing is to be included, irrespective of the suffix or prefix to
the name of the tribe Mana. It is contended that for the purpose of 5
the reference an interim order passed in Gitesh Narendra Ghormare
Vs. Scheduled Tribe Certificate Scrutiny Committee (supra) could not
have been relied upon as interim order does not survive after the
decision of the lis and merges into the final order, for which reliance
is placed upon National Bal Bhawan and another Vs. Union of India 10
and others (2003) 9 SCC 671. Even if an interim order is reproduced
in the final order, it is the final order which prevails for which
reliance is also placed on BPL Ltd. and others Vs. R. Sudhakar and
others (2004) 7 SCC 219, and it is reiterated that the interim order
could not have been relied upon for making a reference. The 15
reference is made on a mistaken impression that the Anthropological
reports, literature, answers by the learned Assistant Government
Pleader, answers by the Scrutiny Committee, the various
Government Resolutions cannot be relied upon. Reference is made to
Mana Adim Jamat Mandal Vs. State of Maharashtra (by the High 20
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Court- Shah, J.) which considers these and the special leave petition
filed there against having been dismissed. Consideration of Texts for
understanding meaning/controversy as an approach is confirmed by
the Hon'ble Supreme Court on account of dismissal of the Special
Leave Petition. Therefore, reference in Gitesh Narendra Ghormare Vs. 5
Scheduled Tribe Certificate Scrutiny Committee (supra) upon
text/reports, is not wrong. Therefore reliance upon a report
/survey /replies, etc. is permissible (para 31/159). The referring
Court proceeds on an erroneous presumption that asking questions
itself is wrong. Asking of questions is not prohibited. However use of 10
answer for including in list is prohibited, but there is no restriction
for using the answer for understanding the controversy.
Consideration in the reference order of para 19 in Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School (supra) and
what is quoted in para 27(i) of the reference order is irrelevant. 15
3.6. In so far as para 27(i) of the reference order is
concerned it is contended that answer of the Assistant Government
Pleader was in respect of Patil Mana and not for other Manas and
therefore was factually incorrect. When the reference Court speaks
about Umesh Ganeshrao Jambhore Vs. Vice-Chairman/Member- 20
Secretary, Scheduled Tribe Caste Certificate Scrutiny Committee
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(supra) that it does not fall in line to a certain extent, it does not
indicate with any clarity to what extent and what is the discord. The
references is on a wrong impression that in Gitesh Narendra
Ghormare Vs. Scheduled Tribe Certificate Scrutiny Committee
(supra) the Government Resolution dated 24/04/1985 has been 5
followed (para 28/66) whereas Gitesh Narendra Ghormare Vs.
Scheduled Tribe Certificate Scrutiny Committee (supra) states that
GR has lost its significance. Mana is a community therefore everyone
is included, there is no exclusion. State of Maharashtra Vs. Keshao
Vishwanath Sonone (supra) confirms that exceptions recognised in 10
B. Basavalingappa Vs. D. Munichinnappa (supra) have been
preserved (placetum - C) .
4. Mr. S.P. Bhandarkar, learned Counsel supporting the
petitioners contends that under Article 338-A of the Constitution the 15
National Commission for ST is constituted. In case of any inclusion
or exclusion of a Tribe in the Presidential order it submits a report
which has to be then tabled before the Parliament. Article 342(2)
cannot add/delete. Propositions laid down in State of Maharashtra
Vs. Milind (supra) para 26/194 and State of Maharashtra Vs. 20
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Keshao Vishwanath Sonone (supra) para 104/105 indicates report of
Commission considered and GR of 1985 validated.
4.1. As regards Question - A, he submits, which exposition of
the Apex Court is not followed has not been specified. Reliance is
placed State of Orissa and others Vs. Md. Illiyas (2006) 1 SCC 275 5
para 12 and Career Institute Educational Society Vs. Om Shree
Thakurji Educational Society 2023 SCC OnLine 586 (para 6) for
what constitutes a precedent. In Gitesh Narendra Ghormare Vs.
Scheduled Tribe Certificate Scrutiny Committee (supra) though
anthropological survey is considered (para 18), appreciation of 10
evidence for interpretation of entries of caste/ tribe contained in
documents/reports is not prohibited. What is prohibited is the
interpretation of caste/tribes entries in the Presidential Order. In
reference to Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate 15
Scrutiny Committee (supra) it is submitted that Scrutiny Committee
has powers of Civil Court and therefore can interpret documents.
(Para 12/13 pg 109). There is distinction between documents of
caste/tribe on one hand and documents/reports in relation to entry
18 on the other hand. Scrutiny of documents is not scrutiny of entry. 20
By entry 18 'Mana' an umbrella has been created under which all
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sects/ sub-tribes, with whatever prefix/suffix or name related to
Mana stand included and therefore an enquiry was permissible as
the tribe to which a claimant belongs needs to be determined. The
ratio in Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee (supra) is laid down in para 19 and 23 and not 5
otherwise. No post presidential enquiry has been made in Gitesh
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee (supra). The very purpose of bestowing powers of the
Civil Court upon the Caste Scrutiny Committee is for conducting an
enquiry to reconcile the entries and contrary arguments are not 10
valid. Reliance is placed upon A.S. Nagendra and others Vs. State of
Karnataka and others (2005) 10 SCC 301 (paras 6 & &) to contend
that when a dispute came before the Court whether tribe 'Maaleru'
and Maleru' are the same, enquiry into the same was held to be
permissible. In view of State of Maharashtra Vs. Milind (supra) it is 15
contended that the reference needs no answer.
4.2. Shrimanth Balasaheb Patil Vs. Speaker, Karnataka
Legislative Assembly and others (2020) 2 SCC 595 (para 160) and
Mohd. Raees s/o Shahzade Ansari Vs. State of Maharashtra and
others 2022 (4) Mh. L.J. 353 (para 11) are relied upon to contend 20
that there is no conflict and reference itself was not necessary and be
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returned back with such an opinion. In State of Maharashtra Vs.
Keshao Vishwanath Sonone (supra) survey/reports were taken into
consideration which indicates that it is permissible while making an
enquiry. Test of Inversion has to be applied and even if para 18 in
Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny 5
Committee (supra) is ignored, it would indicate absence of any
conflict, in view of which no reference was necessary. In regard to Q-
A it is contended that no answer is necessary and therefore all other
questions become redundant.
5. Mr. Nitin Meshram, learned Counsel contends that
President has 2 powers : to specify tribes or tribal communities and
parts thereof. If a tribe/community is specified then all groups
included in such tribes will be automatically included in such entry.
Therefore entry 18 'Mana' would include every group/whole 15
community whatever be their names with prefix or suffix. e.g. entry
-- 'Mahar' includes all sub tribes. If whole of Community included
then all groups in community stand included. Not vice Versa. State
of Maharashtra Vs. Milind (supra) did not interpret Article 341(1).
Scope of interpretation was only in respect of Article 341(2) and the 20
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presidential order. The inclusion of a community and thereby its
several groups has not been considered in State of Maharashtra Vs.
Milind (supra). Referring to Article 31-C it is contended that there
cannot be any complete embargo on the powers of the Court to
interfere. If enquiry is leading to variation in schedule then not 5
permissible. If no variation then enquiry permissible. On account of
removal of area restrictions in 1976, number of persons in an entry
has increased. There is no justification for the apprehension that
fake communities are being included on that count. Whole
community in entry, is an umbrella under which all parts of the 10
community are included. In support of his argument he relied upon
Sandeep s/o Deorao Jiwtode Vs. Committee for Scrutiny and
Verification of Tribes Claims, Amravati and others (Writ Petition
No.878/2009, decided on 04/03/2009); Omprakash Deorao Dharne
Vs. The Scheduled Tribe Caste Certificate Scrutiny Committee, 15
Amravati and another (Writ Petition No.4636/2007 decided on
29/08/2009); Omkar s/o Ashokkumar Narnaware Vs. Committee
for Scrutiny and Verification of Tribe Claims and another (Writ
Petition No.3869/2008, decided on 21/01/2009); Priya Pramod
Gajbe Vs. State of Maharashtra through its Secretary, Tribal 20
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Development Department, Mantralaya, Mumbai and others (Writ
Petition No.996/2018, decided on 22/12/2018); Priya Pramod
Gajbe Vs. State of Maharashtra and Others 2023 SCC OnLine SC
909; Dudhram s/o Baguji Hanwate Vs. State of Maharashtra and
others (Writ Petition No.3377/2019, decided on 01/03/2021); 5
Milind Sharad Katware and others Vs. State of Maharashtra and
others 1985 SCC Online 214; 1987 Mah.L.J. 572; Chairman and
Managing Director, Food Corporation of India and others Vs. Jagdish
Balaram Bahira and others (2017) 8 SCC 670 and Sayanna Vs. State
6. Mr. Shailesh Narnaware, learned Counsel contends that
it is the Additional Government Pleaders who have created an
incorrect impression that para 18 of Gitesh Narendra Ghormare Vs.
Scheduled Tribe Certificate Scrutiny Committee (supra) indicates an 15
enquiry was conducted by the Court affecting entry 18, whereas it is
not so. Enquiry is limited to the evaluation of facts and documents
which is permissible. What would an enquiry into the entry mean :
Koshti included in Halba - that would mean an enquiry. The
questions asked of the AGP whether Tribes 'Mani, Mane etc' were 20
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included in Tribe Mana, and the answer's received would not mean
an enquiry being conducted into the entry. The enquiry done is
limited to the entries in the documents to determine which entry has
the greatest evidentiary value so as to be taken into account to
determine whether the person belongs to the tribe which he claims, 5
which are usually asked in routine matters. In support of his
arguments, he relied upon Kum. Ashwini Vilas Chavan Vs. State of
Maharashtra Through its Secretary, Tribal Development Department,
Mantralaya, Mumbai and others (Writ Petition No.28/2016 decided
on 10/04/2017) and Abhijit Suryakant Thakar and another Vs. State 10
of Maharashtra through its Secretary and others (Writ Petition
No.4407/2019 decided on 05/01/2023).
6.1. The judgments in Gajanan Pandurang Shende Vs. Head
Master, Govt. Ashram School, Gitesh Narendra Ghormare Vs.
Scheduled Tribe Certificate Scrutiny Committee and Umesh 15
Ganeshrao Jambhore Vs. Vice-Chairman/Member-Secretary,
Scheduled Tribe Caste Certificate Scrutiny Committee (supra) do not
deal with the constitutional status of the entry but with the
individual claims made. No enquiry has been done as to whether
Mane/ Mani etc were included in Mana. No alteration or 20
amendment done to the entry. Therefore reference is unwanted.
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Enquiry by Scrutiny Committee is different. Limited power of
verification of the caste claim conferred by the Act of 2001, upon the
Scrutiny Committee cannot be confused with an enquiry with
reference to the Constitutional status of an entry. Judgment in Mah.
Adiwasi Thakur Jamat Swarakshan Samiti Vs. State of Maharashtra 5
and others 2023 SCC OnLine SC 326, also holds that an enquiry
into the entries in documents mentioning tribes, can be permitted to
determine the caste claim and the oldest documents have to be
considered first, based upon which the veracity of entries in the later
7. Advocate Mr. Sunil Khare supporting the petitioners by
relying on Palghat Jilla Thandan Samudhaya Samrakshna Samithi
and another Vs. State of Kerala and another (1994) 1 SCC 359
submits that enquiry into the entry is permissible. Rule 12 (2) of the 15
Maharashtra Scheduled Tribes (Regulation of Issuance and
Verification of) Certificate Rules, 2003 ["Maharashtra Certificate
Verification Rules", for short hereinafter] contemplates inquiry. Same
according to him, is spelt out from Anand Vs. Committee For
Scrutiny and Verification of Tribe Claims and others (2012) 1 SCC 20
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113 and Shilpa Vishnu Thakur Vs. State of Maharashtra and others,
2009 (3) Mh.L.J. 995. Assigning value to entry in
document/evidence is done by Scrutiny Committee on basis of
reports, anthropological surveys etc and High Court is entitled to
look into them for determining their probative value vis-a-vis the 5
claim raised of a person belonging to a Scheduled Tribe. High Court
can access material. There is no qualification in the entry 'Mana' in
entry 18, therefore everyone Mane/Mani/ Patil Mana/Ka Mana etc
included. In Government Resolution of 24/4/1985, the State
defined 2 sections of Mana. Para 23 of State of Maharashtra and 10
others Vs. Mana Adim Jamat Mandal (2006) 4 SCC 98 and
Judgment in Manisha D/o Pundlik Dadmal Vs. The Vice-Chairman/
Member Secretary, Scheduled Tribe Caste Certificate Scrutiny
Committee, Gadchiroli and others (Writ Petition No.5481/2019,
decided on 30/08/2018) is also relied on. In support of his 15
argument, he relied upon Anita Atmaram Gaikwad Vs. State of
Maharashtra and others (Special Leave Petition No.23081/2010,
decided on 16/04/2013); Narayan Dinbaji Jambule and others Vs.
The Scheduled Tribe Certificate Scrutiny Committee, Gadchiroli and
others (Public Interest Litigation No.102/2013, decided on 20
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15/04/2016); Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School and Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee; B. Basavalingappa Vs. D.
Munichinnappa to State of Maharashtra Vs. Keshao Vishwanath
Sonone ; Chandrashekhar Vinayak Chaudhari Vs. The Scheduled 5
Tribe Certificate Scrutiny Committee, Gadchiroli and others (Writ
Petition No.5828/2022 decided on 18/04/2023).
8. Advocate Ms P.D. Rane supporting the petitioners,
invites our attention to the appendum to Government Resolution 10
dated 24/04/1985 and specifically column 4, thereof to contend that
the entries in the fourth column, by which the State had tried to
carve out certain -sub-tribes from the Tribe 'Mana', on the ground
that these were not part of it, had been struck down and therefore
the view taken in Gajanan Pandurang Shende Vs. Head Master, Govt. 15
Ashram School, Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee and Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee (supra) was correct. She has further relied upon
Aishwarya D/o Madhukar Sonwane Vs. The Scheduled Tribe Caste 20
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Certificate Scrutiny Committee, Gadchiroli and others (Writ Petition
No.3837/2013, decided on 11/08/2022); Dashrath s/o Gajanan
Wakade Vs. The Collector, Nagpur and others (Writ Petition
No.2132/2023 decided on 25/08/2022); Harshu D/o Mahadeo
Randai Vs. The Vice-Chairman/Member-Secretary, Scheduled Tribe 5
Caste Certificate Scrutiny Committee, Nagpur and others (Writ
Petition No.8403/2022 decided on 04/01/2023); Vasanta s/o
Mukunda Nagose Vs. Scheduled Tribe Certificate Scrutiny
Committee, Gadchiroli and others (Writ Petition No.1813/2014
decided on 06/01/2023); Savita D/o Gulabrao Dongre Vs. The Vice- 10
Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee, Amravati (Writ Petition No.6903/2018 decided
on 18/01/2023); Dhananjay S/o Manik Randhaye Vs. The
Scheduled Tribe Caste Certificate Scrutiny Committee, Gadchiroli
(Writ Petition No.1935/2022 decided on 13/06/2023) in support of 15
her submissions and argued supporting the views taken in Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School, Gitesh
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee and Umesh Ganeshrao Jambhore Vs.
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Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee.
9. Arguments - opposing the views expressed in Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School, Gitesh 5
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee and Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee.
9.1. Mr. S.P. Dharmadhikari, learned Senior Counsel for the 10
Intervenor in Civil Application No.1611/2023 contends that there is
a conflict and therefore reference is necessary. Gajanan Pandurang
Shende Vs. Head Master, Govt. Ashram School (supra) in para 18
and 23 holds that the entry Mana has to be read as if all others
Mane/ Mani/ Patil Mana / Su Mana / Ku Mana etc are included in 15
the entry and there cannot be any exclusion, which is contrary to
what has been held in State of Maharashtra Vs. Milind (supra).
When referring Bench found that the law laid down in Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School, Gitesh
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny 20
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Committee and Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee (supra) sought to do something contrary to what
has been held by the Apex Court in State of Maharashtra Vs. Milind
(supra) it was correct in not agreeing with them on account of which 5
reference is made. Gajanan Pandurang Shende Vs. Head Master,
Govt. Ashram School, Gitesh Narendra Ghormare (supra) says
addition permissible in entry Mana, suffix/ prefix stood included and
could not be excluded. Mana Adim Jamat Mandal Vs. State of
Maharashtra (supra) according to him, is on a different footing in as 10
much as earlier it was considered that Mana was a sub-tribe of Gond
and therefore affinity was required to be established. It holds that
Mana is a Tribe in itself. The Government Resolution of 24/04/1985
(pg.36) states that unless affinity was shown to Gond a person could
not claim ST status. That GR has been set aside. In view of the Apex 15
Court judgment in State of Maharashtra Vs. Mana Adim Jamat
Mandal (SC-supra) the High Court in Gajanan Pandurang Shende Vs.
Head Master, Govt. Ashram School, (supra) could not have
considered paras 22 and 24 of the judgment of the High Court in
Mana Adim Jamat Mandal Vs. State of Maharashtra (HC- surpa) as 20
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on account of the principle of merger it stood merged in the
judgment of the Apex Court for which Kunhayammed and others Vs.
State of Kerala and another (2000) 6 SCC 359 (paras 41,42 & 44 ) is
relied upon.
9.2. Question Nos.1 and 2 in State of Maharashtra Vs. 5
Keshao Vishwanath Sonone (supra) which have been answered in
para 65 therein covers the question A referred. State of Maharashtra
Vs. Mana Adim Jamat Mandal (supra-SC) may have lost its
significance in view of para 107 in State of Maharashtra Vs. Keshao
10. Advocate Mr. Uday Warunjikar, opposing the view taken
in Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram School,
Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee and Umesh Ganeshrao Jambhore Vs. 15
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee (supra) contends that B. Basavalingappa Vs. D.
Munichinnappa (supra) holds no inclusion/modification, no leading
evidence to establish caste in entry. Bhaiya Lal Vs. Harikishan Singh
(supra) in para 10 holds the entry has to be read as it is. Nityanand 20
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Sharma Vs. State of Bihar (supra) in para 9 holds no translation
mistake can be corrected and in para 20 holds no declaration can be
made. Both Nityanand Sharma Vs. State of Bihar (supra) in para 13
and Bhaiya Lal Vs. Harikishan Singh (supra) in para 8 hold that no
inclusion even for similar names / synonyms could be made. Palghat 5
Jilla Thandan Samudhaya Samrakshna Samithi Vs. State of Kerala
(supra) in para 17/18, State of Maharashtra Vs. Milind (supra) in
para 28 and Bhaiya Lal Vs. Harikishan Singh (supra) hold no
enquiry for modification of entry is permissible. Parsram Vs.
Shivchand (supra) in para 13 lays down that even 10
Gazetteer/Glossaries cannot be looked into. Srish Kumar Choudhury
Vs. State of Tripura (supra) in para 21 lays down that entries in the
Presidential order cannot be added to or subtracted from, unless
done by Parliament. All entries have to be read as it is. Enquiry
under Article 342(2) is only permitted by legislature. Entries done in 15
Presidential Order are after considering
research/Gazetteers/Glossaries/reports/ consultation with
Governor / State and cannot be now gone into by Courts.
10.1. Object of positive discrimination by granting ST status
to tribes in the entry is being frustrated by Gajanan Pandurang 20
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Shende Vs. Head Master, Govt. Ashram School, Gitesh Narendra
Ghormare Vs. Scheduled Tribe Certificate Scrutiny Committee and
Umesh Ganeshrao Jambhore Vs. Vice-Chairman/Member-Secretary,
Scheduled Tribe Caste Certificate Scrutiny Committee (supra). Actual
beneficiaries are being deprived. State of Maharashtra Vs. Keshao 5
Vishwanath Sonone (supra) para 43 is also relied upon.
10.2. Scope of enquiry under Section 6 of The Maharashtra
Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta
Jatis), Nomadic Tribes, Other Backward Classes and Special
Backward Category (Regulation of Issuance and Verification of) 10
Caste Certificate Act, 2000, (for the sake of brevity hereinafter
referred to as the 'Maharashtra Certificate Validity Act') and Rule
12 of the Maharashtra Certificate Verification Rules, framed
thereunder and their breach will be only scope of enquiry. Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School and Gitesh 15
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee (supra) do not lay down the correct law. Umesh
Ganeshrao Jambhore Vs. Vice-Chairman/Member-Secretary,
Scheduled Tribe Caste Certificate Scrutiny Committee (supra) para 13
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11. Mr. S.M. Ukey learned Additional Government Pleader
for the State as well as the Caste Scrutiny Committee submits that B.
Basavalingappa Vs. D. Munichinnappa, Bhaiya Lal Vs. Harikishan
Singh, State of Maharashtra Vs. Milind and State of Maharashtra Vs.
Keshao Vishwanath Sonone (supra) expressly prohibit any enquiry 5
whatsoever in the entries as made in the Presidential Order, and
power to amend is only with the Parliament. State of Maharashtra
Vs. Keshao Vishwanath Sonone (supra) holds that there is no conflict
between B. Basavalingappa Vs. D. Munichinnappa and State of
Maharashtra Vs. Milind (supra). If the 'inversion test', as laid down in 10
State of Gujarat and others Vs. Utility Users' Welfare Association and
others (2018) 6 SCC 21, is applied (para 114), and paras 12 to 18,
22 to 25 in Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee (supra) were removed, the entire structure of
the judgment would change and still the conflict with State of 15
Maharashtra Vs. Milind (supra) would be apparent. If what is held in
Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram School,
and Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee (supra) is not clarified then the Scrutiny
Committee being bound to follow the latest law, would have to do 20
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so, resulting in grant of validity certificates to persons who do not
belong to 'Mana' Tribe as per entry 18. In support of his argument,
he relied upon Khilumal Topandas Vs. Arjundas Tulsidas AIR 1959
RAJ 280 and Udai Chand Vs. Mt. Bakka AIR 1952 RAJ 52.
12. Mr. Mohan Sudame, learned Counsel has taken us
through the legislative history of the Presidential Order and the entry
18, 'Mana'. Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School (supra) according to him presumed incorrectly that
all tribes with the word 'Mana', with any prefix or suffix, synonyms, 10
stand included in the entry 18-'Mana', and therefore everyone is
entitled to benefit irrespective of the fact that only 'Mana', tribe is
included in entry 18. In Gitesh Narendra Ghormare Vs. Scheduled
Tribe Certificate Scrutiny Committee (supra) this position is
reiterated and affirmed by the same Division Bench. In Umesh 15
Ganeshrao Jambhore Vs. Vice-Chairman/Member-Secretary,
Scheduled Tribe Caste Certificate Scrutiny Committee (supra)
para 13, Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram
School and Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee (supra) have been applied. Benefit of 20
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Tribes are more than castes therefore pseudo tribe claims are being
made by persons not belonging to the tribes whose names figure in
the various entries in the Presidential Order, which position has been
recognised by the Apex Court in Kumari Madhuri Patil and another
Vs. Addl. Commissioner, Tribal Development and others (1994) 6 SCC 5
241 (supra) para 9. In State of Maharashtra Vs. Milind (supra) he
invites our attention to paras 14, 15 and 33 to point out that debates
of the Constituent Assembly have been noticed to point out the
restriction on the powers of the Courts. The restriction in tinkering
with the entries in the Presidential Order, is apparent from Parsram 10
Vs. Shivchand (supra) where a claim of a person of belonging to the
'Chamar', Tribe was negatived as he was a Mochi. B. Basavalingappa
Vs. D. Munichinnappa and Bhaiya Lal Vs. Harikishan Singh (supra)
cast a total embargo upon the powers of the Court to interpret the
entries in the Presidential Order, so as to include or exclude anything 15
therefrom.
12.1. Rule 8 of the Bombay High Court Appellate Side Rules
1960, permits a reference to be made, in case the Court thinks that
there is a conflict, considering which the Hon'ble Chief Justice has
also made a reference. National Insurance Company Limited Vs. 20
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Pranay Sethi and others (2017) 16 SCC 680 -paras 15 and 18 have
been relied upon.
LEGISLATIVE HISTORY OF THE ENTRY
13. The background necessary for understanding and
considering the various arguments raised by learned Counsels for 5
this reference is as under :
13.1. By virtue of the Constitution (Scheduled Tribes) Order,
1950 ('Presidential ST Order 1950', for short hereinafter), issued by
the President of India, in exercise of the powers conferred by virtue
of Article 342(1) of the Constitution, the Tribes or the tribal 10
communities, or parts of, or groups within tribes or tribal
communities, as specified in Parts I to XII of the Schedule thereof
were declared to be Scheduled Tribes, for the localities specified in
relation to them. This was published in the official Gazette of the
13.2. Part IV of the 'Presidential ST Order 1950', related to
the State of Madhya Pradesh, in which for the areas of Melghat
Tahsil in Amravati District and Gadhchiroli and Sironcha Tahsil in
Chanda District, which were then included in the State of Madhya
Pradesh, vide entry no.12, 'Gond' including Madia (Maria) and 20
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Mudia ( Muria) were granted Scheduled Tribe Status. There was no
entry in regard to 'Mana'. The entry was as under :
"12. Gond [including Madia (Maria) and Mudia (Muria)]"
13.3. By virtue of the States Reorganization Act, 1956, (States
Reorg. Act, 1956 for short hereinafter) dated 31/08/1956 [Act no.37 5
of 1956], which came into force on 01/11/1956, the areas of
Melghat Tahsil in Amravati District and Gadhchiroli and Sironcha
Tahsil in Chanda District came to be included in the newly formed
State of Bombay. By virtue of Sec.8 of the States Reorg. Act, 1956,
Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara and 10
Chanda districts in the existing State of Madhya Pradesh stood
excluded from the State of Madhya Pradesh and included in the
State of Bombay. Sec.41 of the States Reorg. Act, 1956, conferred
power upon the President by order to make such modifications in the
'Presidential ST Order 1950' as he thinks fit having regard to the 15
territorial changes and formation of new States under the provisions
of Part II.
13.4. Parliament in exercise of the powers as conferred by
Article 342(2) of the Constitution, enacted The Scheduled Castes
and Scheduled Tribes Orders (Amendment) Act,1956 [Act No.63 of 20
1956], w.e.f. 25/09/1956 whereby in respect of Melghat Tahsil in
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Amravati District and Gadhchiroli and Sironcha Tahsil in Chanda
District and Kelapur, Wani and Yeotmal Tahsils in Yeotmal District, of
the State of Madhya Pradesh [as The States Reorg. Act, 1956, was to
come into force on 01/11/1956], entries 4, 12, 13 and 15 stood
substituted. In the substituted entry no.12 which related to 'Gond', 5
40 sub-tribes were included in the entry 'Gond'. On account of the
word used thereafter 'including', the tribe 'Mana', was granted a
Scheduled Tribe Status as it was held to be included in the entry
'Gond'. The entry reads as under :
Arakh or Arrakh
Agaria
Asur
Badi Maria or Bada Maria
Bhimma
Bhuta, Koilabhuta, Koilabhuti
Bhar
Bisonhorn Maria
Dandami Maria
Dhuru or Dhurwa
Dhoba
Dhulia
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Gaiki
Gatta or Gitti
Gaita
Gond Gowari
Kandra
Kalanga
Khatola
Koitar
Khirwar or Khirwara
Kucha Maria
Kuchaki Maria
Madia (Maria)
Mannewar
Moghya or Mogia or Manghya
Mudia (Muria)
Nagarchi
Ojha
Raj
Sonjhari Jhareka
Thatia or Thotya
13.5. In exercise of the powers as conferred by sec.41 of the
States Reorg. Act, 1956, the President made the Scheduled Castes
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and Scheduled Tribes Lists (Modification) Order, 1956 which was
published in Gazette of India, extraordinary Part-II-Section 3, on
29/10/1956, in which, in respect of Melghat Tahsil in Amravati
District and Gadhchiroli and Sironcha Tahsil in Chanda District and
Kelapur, Wani and Yeotmal Tahsils in Yeotmal District, vide entry 5
no.12, Part IV-Bombay at Serial No.7, which related to 'Gond', the
above entries as inserted by The Scheduled Castes and Scheduled
Tribes Orders (Amendment) Act, 1956, were maintained for the
above areas which stood included in the State of Bombay. Thus the
inclusion of the Tribe 'Mana', in the entry no.12-Gond, was 10
continued.
13.6. The Parliament enacted the Bombay Reorganisation Act,
1960, [Act no.11 of 1960] thereby creating the States of
Maharashtra and Gujarat, w.e.f. 25/4/1960. Sec.27 of this Act no.11
of 1960, declared that as and from the appointed day, The 15
'Presidential ST Order 1950', shall stand amended as directed in the
Eighth Schedule to this Act. In the Eighth Schedule to this Act, for
the areas of (1) Melghat tahsil of Amravati District, (2) Gadhchiroli
and Sironcha tahsils of Chanda District, (3) Kelapur, Wani and
Yeotmal tahsils of Yeotmal District, entry 12, was 'Gond, including --' 20
amoungst others 'Mana', tribe. The above entries as inserted by The
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Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,
1956, were maintained. Thus the inclusion of the tribe 'Mana', in
the entry no.12 - Gond in the Presidential Order, 1950, was
maintained.
13.7. The Parliament enacted the Scheduled Castes and 5
Scheduled Tribes Orders (Amendment) Act, 1976, in exercise of the
powers under Article 342(2) of the Constitution, whereby the word
'including', as occurring in the erstwhile entry no.12, which came to
be substituted by entry no.18 for the State of Maharashtra, with
identical entries, after the word 'Gond', was removed, and the 10
comma (,) came to be inserted after every entry, as a result of which
each entry in entry no.12, became recognised as a Scheduled Tribe
on its own, without being required to prove its affinity with the
Scheduled Tribe 'Gond', to claim Scheduled Tribe status. The entry is
"18. Gond Rajgond, Arakh, Arrakh, Agaria, Asur, Badi Maria,
Bada Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Koilabhuti,
Bhar, Bisonhorn Maria, Chota Maria, Dandami Maria, Dhuru,
Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gitti, Gaita, Gond
Gowari, Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, 20
Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia Maria,
Mana, Mannewar, Moghya, Mogia, Monghya, Mudia, Muria,
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Nagarchi, Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka,
Thatia Thotya, Wade Maria, Vide Maria."
A perusal of the above entry 18 would indicate that the status of
'Gond' which in the earlier Schedule of the 'Presidential ST Order
1950', was that of a community and included various sub-tribes 5
therein and a person who belonged to the sub-tribe, in order to claim
the status of a Scheduled Tribe, had to satisfy the affinity test, this
position stood deleted and each sub-tribe in entry 18 was given an
independent status of a scheduled tribe, which is apparent from the
punctuation mark (,) comma occurring after the name of each tribe 10
in entry 18, for the punctuation mark (,) Comma, functions as a tool
to indicate to readers a certain separation of words, phrases, or ideas
in order to prevent misreading the writer's intended meaning. When
a sentence is spoken aloud, a comma often represents a pause, which
in verbal conversation functions to clarify meaning. [See : Kantaru 15
Rajeevaru Vs. Indian Young Lawyers Association 2020 (9) SCC 121 ].
This is clarified in State of Maharashtra v. Mana Adim Jamat
Mandal (supra- SC), in which the Hon'ble Apex Court held as
under :
"30. The common pattern found in most of the group entries is 20
that there is a punctuation mark comma (,) between one entry
and another entry in the group signifying that each one of them is
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deemed to be a separate Scheduled Tribe by itself. In the present
case, Entry 18 of the Schedule clearly signifies that each of the
tribe mentioned therein is deemed to be a separate tribe by itself
and not a sub-tribe of "Gond". "Gond" is a Scheduled Tribe, it is
not disputed. As already noticed that "Gond" including Arakh or 5
Arrakh, etc. found in Entry 12 of the Amendment Act 63 of 1956
has been done away with by the Amendment Act of 1976. In
Entry 18 of the Second Schedule of the Amendment Act of 1976
the word "including" was deliberately omitted, which signifies
that each one of the tribes specified in Entry 18 is deemed to be a 10
separate tribe by itself. Therefore, "Mana" is not a sub-tribe of
"Gond" but a separate tribe by itself and is a Scheduled Tribe."
This position continues as of now.
Article 342 first principles - plain language literal interpretation.
14. Article 342 of the Constitution reads as under : 15
"Article 342 : Scheduled Tribes. - (1) The President may with
respect to any State or Union territory and where it is a State
after consultation with the Governor thereof by public
notification, specify the tribes or tribal communities or parts of
or groups within tribes or tribal communities which shall for 20
the purposes of this Constitution be deemed to be Scheduled
Tribes in relation to that State or Union territory, as the case
may be.
(2) Parliament may by law include in or exclude from the list
of Scheduled Tribes specified in a notification issued under 25
clause (1) any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied by
any subsequent notification."
The canons of statutory interpretation indicate that 30
where the language of a provision is plain and simple, unambiguous,
and the legislative intent is clear the rule of interpretation would be
to interpret it literally, and the other rules of construction need not
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be called in and that is permissible only when the legislative intent is
not clear [see : Hiralal Rattanlal and others Vs. State of U.P. and
others (1973) 1 SCC 216 and Vidarbha Industries Power Limited Vs.
Axis Bank Limited (2022) 8 SCC 352]. It is only when the language
of a provision is ambiguous or lends itself to multiple meanings, that 5
the other rules of statutory interpretations are to be resorted to.
14.1. A reading of Article 342, to us indicates that the
language used is plain and simple. Article 341(2) empowers the
President to specify :
(b) tribal communities or
(c) parts of or groups within tribes or tribal communities
which shall for the purposes of the Constitution be deemed to be
Scheduled Tribes in relation to that State or Union territory.
This has to be by way of a public notification, prior to which, in case 15
it is a State, it has to be in consultation with the Governor of such
State.
Thus, Article 342(1) of the Constitution not only
empowers the President to specify the tribes or tribal communities
for a State or Union Territory, but goes a step further by empowering 20
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the President to specify the individual or several parts of or groups
within tribes or tribal communities too, which are to be deemed to
be Scheduled tribes in relation to such State or Union Territory in
order to have benefits of such inclusion. Thus the power to recognise
any tribe or tribal community or its parts or groups as a Scheduled 5
Tribe, totally vests with the President under Article 342(1) of the
Constitution.
14.2. The word 'within', is a word of restriction in relation to
something which is larger. The word 'within', as per Chamber's
Twentieth Century Dictionary means ' in the limits of', 'not going 10
beyond', or 'on the inner side of'. In Stroud's Judicial Dictionary the
expression 'within', in relation to time, has been explained as inside
which certain events have to happen. The expression 'within the
meaning of', in relation to definitions in statutes would mean
restricted to what has been defined in the Statute regarding a 15
particular expression/definition. Similarly the expression 'within
purview of', would also indicate certain restrictions or parameters
within which the action/provision has to be considered. Thus the
word 'within', imparts a restriction to the context in which it is used.
The word 'within', when viewed in the context of the expression 20
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'specify the tribes or tribal communities or parts of or groups
within tribes or tribal communities' as used in Article 342(1) of
the Constitution, would therefore necessarily mean in relation to the
larger concept of a tribe or tribal community, a smaller part of such
tribe or tribal community. Understood in this sense, when a tribe or 5
tribal community is claimed to consist of a number of sub-tribes or
groups, all of which are identifiable by names, the use of the word
'within', in its context would necessarily mean such parts of the
larger tribe or tribal community, which have been so named and
specified, to the exclusion of all other parts or groups which are 10
claimed to have been included in such larger tribe/group/
community and not otherwise.
14.2.1. The word 'within', as used in Article 342(1) of the
Constitution, would therefore clearly indicate that it is permissible
for the President, while issuing a Notification, to exclude parts, 15
portions or a tribe/sub-tribe/group/community while identifying
tribes or parts/groups thereof to be included in the Presidential (ST)
Order 1950 for according such parts of a tribe/group/community the
status of a Scheduled tribe so as to confer upon it the benefits such
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inclusion entails and exclude all other parts of such
tribe/group/community.
14.2.2. This is clarified from the Presidential (ST) Order 1950,
issued in this regard dated 06/09/1950, a perusal whereof would
indicate that in every entry where it was felt necessary to include a 5
sub-tribe or part of a tribe or several of its parts, the same has been
done by specifically naming and including such sub-tribe or part of a
tribe or several of its parts. Thus where a community was to be
included and granted the status of a scheduled tribe, it was so done
and several of its parts which were to be included in the community 10
were also specified. This is clearly indicated from various entries in
the Presidential (ST) Order 1950. For example in respect of the State
of Bombay, entry no.3 (now entry no.8) was 'Bhil', including
Bhagalia, Bhil Garasia, Dholi Bhil, Dungri Bhil, Dungri Garasia,
Mewasi Bhil, Rawal Bhil and Tadvi Bhil . Thus those sub-tribes of 15
'Bhil', which were felt necessary to be included for the purpose of
conferring them the benefit of Scheduled Tribe status and the
consequent benefits available on account of such inclusion, were
specifically named in the Presidential (ST) Order 1950. Similarly in
the erstwhile State of Madhya Pradesh, in which Vidarbha area was 20
then included, entry 12 was ' Gond' and included Madia, Maria, and
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Muda (Maria). After the amendment of 1976, entry no.38 for the
State of Maharashtra is 'Pardhi; Advichincher, Phans Pardhi, Phanse
Pardhi, Langoli Pardhi, Chita Pardhi too'. This position is further
reinforced by entries 3, 4, 6, 8, 9, 10, 22, 24, 25, 35, 37 for the State
of Madras and so on, and is the position throughout the Presidential 5
(ST) Order 1950. Even in case of Entry 18- for the State of
Maharashtra, this position is indicated by the entries of tribes Badi
Maria, Bada Maria, Bisenhorn Maria, Chota Maria, Dandami Maria
Kucha Maria, Kuchaki Maria, Madia Maria in the entry. The position
is further fortified by the entry 44 in the Presidential (ST) Order 10
1950 as it now exists which is ' Thakur, Thakar, Ka Thakur, Ka Thakar,
Ma Thakur, Ma Thakar'. This would indicate that wherever a sub-
tribe or part of a community was felt necessary to be conferred
Scheduled Tribe Status, the same has been done by specifically
including such sub-tribe or part of a community/tribe in the Entry in 15
the Presidential (ST) Order 1950.
14.3. Thus the inclusion of parts of a Tribe, sub-tribe, where it
was so deemed appropriate was duly specified by inserting its name
in the appropriate entry in the Presidential (ST) Order 1950. Thus
the inclusion of every entry regarding a Tribe or its part or several of 20
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its parts was a conscious act, aimed to confer the benefit upon such
tribe or its part(s) on account of such inclusion. This would further
indicate by necessary implication that the exclusion of all those parts
of a tribe/community which were not included in the various entries
in the Presidential (ST) Order 1950, was intentional. 5
14.4. The language of Article 342 (2) of the Constitution has
a great bearing upon the questions posed to us. Article 342(2)
according to us, creates an embargo in the sense that it prohibits a
notification once issued under clause (1) of Article 342 from being
varied, modified or altered by a subsequent notification issued under 10
Article 342(1), meaning thereby that once the President has caused
a notification under Article 342(1) specifying a tribe(s) or tribal
communities or parts of or groups within such tribes or tribal
communities, to be published, the same cannot be revisited and
varied, even by the President again in exercise of the power under 15
Article 342(1) of the Constitution.
14.5. The power to add/ include, delete/ exclude a tribe(s) or
tribal community(s) or parts of or groups within such tribes or tribal
communities in a notification once published under Article 342(1) of
the Constitution, then vests in the Parliament alone and not with the 20
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President. Thus even the President having once issued a notification
under Article 342(1) of the Constitution, is then denuded of the
power to, in any manner add/ include, delete/ exclude a tribe(s) or
tribal community(ies) or part(s) of or group(s) within such tribe(s)
or tribal community(ies) in such notification. If that be so, then no 5
other authority, including the Courts, can embark on an exercise to
consider whether any tribe(s) or tribal community(ies) or part(s) of
or group(s) within such tribe(s) or tribal community(ies) is included
in any of the tribe or is a part of or group within any such tribe or
tribal community as specified in any entry in such notification. That 10
is then, the sole domain of the Parliament under Article 342(2) of
the Constitution.
14.6. Any other interpretation would mean that the power
vested in the Parliament under Article 342(2) of the Constitution
would stand usurped by such authority in which it is then so claimed 15
to exist, which is impermissible, for the language of Article 342 not
only speaks about the tribe or tribal community but also of a part(s)
or group(s) within any such tribe(s) or tribal community(ies)
specified in such notification under Article 342(1) of the
Constitution. It is thus not permissible even for the Court's to embark 20
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upon such an exercise, as that would run counter to the mandate of
Article 342(2) of the Constitution and impinge upon the exclusive
domain of the Parliament as mandated therein.
14.7. Thus if a claim is made that a particular group, is a part
of the tribe (s) or tribal community(ies) as specified in the 5
notification under Article 342(1) or 342(2) of the Constitution, then
it would be the Parliament alone which would be empowered to
consider such a claim and include it in the list of Scheduled Tribes as
published under Article 342(1) of the Constitution in the manner as
contemplated by Article 342(2), as the entries made therein are 10
otherwise inviolate. The inclusion/ deletion by the Parliament,
would of course have to be in consonance with the relevant
constitutional provisions applicable in that regard. The entries in the
Presidential (ST) Order 1950 thus have to be read as they are.
THE POSITION AS EMANATING FROM B. Basavalingappa Vs. D.
Munichinnappa, Bhaiya Lal Vs. Harikishan Singh and State of
Maharashtra Vs. Milind (supra) and other judgments.
15. In B. Basavalingappa Vs. D. Munichinnappa (supra) the
Constitution Bench, was considering a plea as to whether it was 20
open to make any modification in the Presidential (ST) Order 1950
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by producing evidence to show inclusion of any caste in the entry
made in the Presidential (ST) Order 1950. The entry in the
Presidential (ST) Order 1950 was of the Caste 'Bhovi', as against
which what was claimed, was that it was the same as the caste
'Voddar'. The ratio in B. Basavalingappa Vs. D. Munichinnappa 5
(supra) is spelt out in para 6 thereof which is as under :
"6. It may be accepted that it is not open to make any
modification in the Order by producing evidence to show (for
example) that though caste A alone is mentioned in the Order,
caste B is also a part of caste A and, therefore, must be deemed 10
to be included in caste A. It may also be accepted that
wherever on caste has another name it has been mentioned in
brackets after it in the Order : (See Aray (Mala), Dakkal
(dokkalwar) etc.] Therefore, generally speaking it would not
be open to any person to lead evidence to establish that caste B 15
(in the example quoted above) is part of caste A notified in the
Order. Ordinarily, therefore, it would not have been open in
the present case to give evidence that the Voddar caste was the
same as the Bhovi caste specified in the Order for Voddar caste
is not mentioned in brackets after the Bhovi caste in the order. 20
The enquiry was conducted in the words of the hon'ble Apex Court,
for the following reasons :
"7. -----. But when it is not disputed that there was no caste
specifically known as Bhovi in the Mysore State before 1956,
the only course open to Courts to find out which caste was 25
meant by Bhovi is to take evidence in that behalf. It there was a
caste known as Bhovi as such in the Mysore State as it existed
before 1956, evidence could not be given to prove that any
other caste was included in the Bhovi caste . ----.
10. -----. As the President could not have included in the Order 30
a non-existent caste, it means the word "Bhovi", relates to some
caste in Mysore as it was before 1956 and we have, therefore,
to establish the identity of that caste and that can only be done
by evidence. ------. We may again repeat that we have referred
to the evidence in this case only because there was 35
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undisputedly no caste known as Bhovi in the Mysore State as it
was before 1956 and we had to find out, therefore, which caste
was meant by the word "Bhovi" as used in the Order. But for
this fact it would not have been open to any party to give
evidence to the effect that (for example) caste A mentioned in 5
the Order includes or was the same as caste B where caste A
does not exist in the area to which the order applies ."
It is thus apparent that in B. Basavalingappa Vs. D.
Munichinnappa (supra), the entry of the caste 'Bhovi', was already in 10
the Presidential Order and thus it was not a case where an enquiry
was undertaken/permitted to include/exclude any caste or parts
thereof. The enquiry was for the purpose of identifying the caste,
listed in the entry, and not otherwise. Thus B. Basavalingappa Vs. D.
Munichinnappa (supra) does not lay down any proposition that an 15
enquiry is permissible in respect of a claim for inclusion of a caste in
an entry in the Presidential (ST) Order 1950 and for that purposes
evidence is admissible, as is sought to be contended.
15.1. Bhaiya Lal Vs. Harikishan Singh (supra) which again
was a decision by the learned Constitution Bench, was a case in 20
which a claim was made that the appellant belonged to Dohar caste,
which was a sub-caste of the Chamar caste. Even this enquiry was
held to be not permissible to be made, which is apparent from the
follows :
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"8. Incidentally, we may point out that the plea that the
Dohar caste is a sub-caste of the Chamar caste cannot be
entertained in the present proceedings in view of the
Constitution (Scheduled Castes) Order, 1950. This Order has
been issued by the President under Article 341 of the 5
Constitution. Article 341(1) provides that the President may
with respect to any State or Union Territory, and where it is a
State, after consultation with the Governor thereof, by public
notification, specify the castes, races or tribes or parts of or
groups within castes, races, or tribes which shall for the 10
purposes of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union Territory, as the case
may be. Sub-article (2) lays down that Parliament may by law
include in or exclude from the list of Scheduled Castes
specified in a notification issued under clause (1) any caste, 15
race or tribe or part of or group within any caste, race or tribe,
but save as aforesaid a notification issued under the said clause
shall not be varied by any subsequent notification. It is thus
clear, that in order to determine whether or not a particular
caste is a scheduled caste within the meaning of Article 341, 20
one has to look at the public notification issued by the
President in that behalf. In the present case, the notification
refers to Chamar, Jatav or Mochi, and so, in dealing with the
question in dispute between the parties, the enquiry which the
Election Tribunal can hold is whether or not the appellant is a 25
Chamar, Jatav or Mochi. The plea that though the appellant is
not a Chamar as such, he can claim the same status by reason
of the fact that he belongs to the Dohar caste which is a sub-
caste of the Chamar caste, cannot be accepted. It appears to us
that an enquiry of this kind would not be permissible having 30
regard to the provisions contained in Article 341. In the case of
B. Basavalingappa v. D. Munichinnappa this Court had
occasion to consider a similar question. The question which
arose for decision in that case was whether Respondent 1,
though Voddar by caste, belonged to the scheduled caste of 35
Bhovi mentioned in the Order, and while holding that an
enquiry into the said question was permissible, the Court has
elaborately referred to the special and unusual circumstances
which justified the High Court in holding that Voddar caste
was the same as the Bhovi caste within the meaning of the 40
Order; otherwise the normal rule would be:
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"it may be accepted that it is not open to make any
modification in the Order by producing evidence to
show, for example, that though caste A alone is
mentioned in the Order, caste B is also a part of caste
A and, therefore, must be deemed to be included in 5
caste A."
That is another reason why the plea made by the appellant
that the Dohar caste is a sub-caste of the Chamar caste and as
such must be deemed to be included in the Order, cannot be
9. Whilst we are referring to this aspect of the matter, we
may point out that the Order has taken good care to specify
different castes under the same heading where enquiry showed
that the same caste bore different names, or it had sub-castes
which were entitled to be treated as scheduled castes for the 15
purposes of the Order. In the district of Datia, for instance,
Entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or
Raidas. Similarly, in respect of Maharashtra, Item 1, Entries 3
and 4 refer to the same castes by different names which shows
either that the said castes are known differently or consist of 20
different subcastes. Likewise, Item 2, Entry 4 in the said list
refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami,
Satnami, Surjyabanshi or Surjyaramnami. It is also remarkable
that in Maharashtra in certain districts Chamar and Dohar are
included in the list separately. Therefore, we do not think that 25
Mr Chatterjee can seriously quarrel with the conclusion of the
High Court that the appellant has not shown that he belongs to
the Chamar caste which has been shown in the Order as a
scheduled caste in respect of the Constituency in question.
10. Mr Chattejee attempted to argue that it was not 30
competent to the President to specify the lists of Scheduled
Castes by reference to different districts or sub-areas of the
States. His argument was that what the President can do under
Article 341(1) is to specify the castes, races or tribes or parts
thereof, but that must be done in relation to the entire State or 35
the Union Territory, as the case may be. In other words, says
Mr Chatterjee, the President cannot divide the State into
different districts or sub-areas and specify the castes, races or
tribes for the purpose of Article 341(1). In our opinion, there is
no substance in this argument. The object of Article 341(1) 40
plainly is to provide additional protection to the members of
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the Scheduled Castes having regard to the economic and
educational backwardness from which they suffer. It is obvious
that in specifying castes, races or tribes, the President has been
expressly authorised to limit the notification to parts of or
groups within the castes, races or tribes, and that must mean 5
that after examining the educational and social backwardness
of a caste, race or tribe, the President may well come to the
conclusion that not the whole caste, race or tribe but parts of
or groups within them should be specified. Similarly, the
President can specify castes, races or tribes or parts thereof in 10
relation not only to the entire State, but in relation to parts of
the State where he is satisfied that the examination of the
social and educational are backwardness of the race, caste or
tribe justifies such specification. In fact, it is well known that
before a notification is issued under Article 341(1), an 15
elaborate enquiry is made and it is as a result of this enquiry
that social justice is sought to be done to the castes, races or
tribes as may appear to be necessary, and in doing justice, it
would obviously be expedient not only to specify parts or
groups of castes, races or tribes, but to make the said 20
specification by reference to different areas in the State.
Educational and social backwardness in regard to these castes,
races or tribes may not be uniform or of the same intensity in
the whole of the State; it may vary in degree or in kind in
different areas and that may justify the division of the State 25
into convenient and suitable areas for the purpose of issuing
the public notification in question. Therefore, Mr Chatterjee is
in error when he contends that the notification issued by the
President by reference to the different areas is outside his
Thus, it was clearly held that it was permissible for the
President to include a caste, sub-caste or any part or parts of such
caste in the Presidential (SC) Order 1950 and in doing so the
President has been expressly authorised to limit the notification to 35
parts of or groups within the castes, races or tribes and thus the plea
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that the Dohar caste is a sub-caste of the Chamar caste was held not
entertainable.
15.2. In Parsram Vs. Shivchand (supra) the question under
consideration was 'Is respondent 8 Kishan Lal a Hindu Chamar by
caste which is a scheduled caste within the meaning of Part X of the 5
Schedule to the Constitution (Scheduled Castes) Order 1950 ?' The
question was framed in the backdrop of a claim that the nomination
of Kishal Lal was rejected on the ground that he belonged to the
Mochi caste and that Chamar and Mochi were not two separate
castes and the word "mochi" was applied to a Chamar who actually 10
started working in leather and therefore the rejection was improper.
According to the petitioner, Kishan Lal was a Hindu and being a
Chamar by caste as he belonged to a scheduled caste within the
meaning of para 2, read with Part X of the Constitution (Scheduled
Castes) Order, 1950, issued under Article 341 of the Constitution, he 15
had filed a declaration under Section 33 (2) of the Representation of
Peoples Act, stating his caste to be Chamar covered by Item 9 in Part
X (Punjab) of the Schedule to the Constitution (Scheduled Castes)
Order, 1950 which item had the entries as "Chamar, Jatia Chamar,
Reghar, Raigarh, Ramdasi or Ravidasi." In this background 20
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considering B. Basavalingappa Vs. D. Munichinnappa and Bhaiya Lal
Vs. Harikishan Singh (supra) it was held thus :
"7. Before the learned Trial Judge, a good deal of evidence
was adduced and arguments advanced as so whether the
words "chamar" and "mochi" were synonymous and even if 5
Kishan Lal was held to be a Mochi, there was no reason to
exclude him from the fold of the caste of Chamars in which
case his nomination paper was wrongly rejected. For this we
have to refer to Article 341 of the Constitution under clause 1
of which the President may, with respect to any State or Union 10
Territory, and where it is a State, after consulting the Governor
of the State, by public notification specify the castes, races or
tribes which shall for the purposes of the Constitution, be
deemed to be Scheduled Castes in relation to that State or
Union Territory as the case may be. This article empowered 15
the President to specify not only the entire castes but tribes or
parts or groups within castes, races or tribes which were to be
treated as Scheduled Castes in relation to a particular caste.
So far as Chamars and Mochis are concerned, it will be noted
from a reference to the Constitution (Scheduled Castes) Order, 20
1950, that the President was not of opinion that they were to
be considered to belong to the same caste in all the different
States. For instance, in the States of Andhra Pradesh, Bihar,
Gujarat, Kerala, Madhya Pradesh, Madras, Maharashtra,
Mysore, Orissa, Rajasthan and West Bengal, Chamars and 25
Mochis were put on the same footing.
8. Before the Reorganisation of the Punjab Act of 1966, Item 9
of Part X of the Order specifying the Scheduled castes in the
States read:
"Chamar, Jatia Chamar, Reghar, Raigar, Ramdasi or Ravidasi." 30
9. After the reorganisation of territories and creation of new
States by the said Act the Scheduled Castes Order was
amended providing for the specification of Scheduled Castes
for the new States and territories. The Constitution
(Scheduled Castes) (Union Territories) Order of 1951, was 35
also amended in 1966. As a result of the above changes, the
final position with regard to the Scheduled Castes was as
follows. Item 9 remained unaltered as regards the new States
of Haryana and the Punjab. Chamars and Mochis were put in
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the same class as regards the Union Territory of Delhi and
Himachal Pradesh, while the position in the Union Territory of
Chandigarh remained the same as in the old States of Punjab.
This shows that even when the subject of specification of
Scheduled Castes engaged the attention of the President in 5
1966, he did not take the view that Mochis should be classed
together with Chamars insofar as the States of Haryana,
Punjab and the Union Territory of Chandigarh were
concerned. It is also clear that the question of inclusion of
Mochis in the Scheduled Castes was considered by him. Apart 10
from this, there are two decisions of this Court which conclude
the point.
13. These judgments are binding on us and we do not
therefore think that it would be of any use to look into the
gazeteers and the glossaries on the Punjab castes and tribes to 15
which reference was made at the Bar to find out whether
Mochi and Chamar in some parts of the State at least meant
the same caste although their might be some difference in the
professions followed by their members, the main difference
being that Chamars skin dead animals which Mochis do not. 20
However that may be, the question not being open to agitation
by evidence and being one the determination of which lies
within the exclusive power of the President, it is not for us to
examine it and come to a conclusion that if a person was in
fact a Mochi, he could still claim to belong to the scheduled 25
caste of Chamars and be allowed to contest an election on that
basis. Quite a lot of evidence was adduced orally and also by
documents before the learned Trial Judge to show that Kishan
Lal was a Chamar and not a Mochi. The learned Judge
examined the evidence thoroughly, and we do not propose to 30
do the same again. In his view Kishan Lal was Mochi and not a
Chamar and we do not see any reason why we should come to
any different conclusion.
14. Once we hold that it is not open to this Court to scrutinise
whether a person who is properly described as a Mochi also 35
falls within the caste of Chamars and can describe himself as
such, the question of the impropriety of the rejection of his
nomination paper based on such distinction disappears. In this
case, Kishan Lal was found to be a Mochi and not a Chamar
and therefore his nomination paper was rightly rejected. He 40
tried to prove by evidence that he was a Chamar but he did
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not succeed therein. The appeal therefore fails, and is
dismissed with costs."
It was thus held that the question regarding an entry in
the Presidential (ST) Order 1950, was not open to agitation by 5
evidence and was one, the determination of which lay within the
exclusive power of the President, it was not for the Courts to
examine it and come to any conclusion regarding the same. Thus a
claim of the caste 'Mochi', being synonymous with 'Chamar' caste
was held not entertainable and no enquiry in that regard was held 10
permissible.
15.3. Srish Kumar Choudhury Vs. State of Tripura (supra) was
a case in which the claim in a representative capacity by the
petitioner was that he belonged to the Laskar community which had
always been treated in the erstwhile State of Tripura as a scheduled 15
tribe and on that basis in the State records was included in the Deshi
Tripura community long before integration of the Ruler's State of
Tripura with the Union of India. Members of the Laskar community
freely enjoyed all the benefits available to members of the scheduled
tribes until in 1976 the State Government decided to treat members 20
of that community as not belonging to the scheduled tribes and
issued instructions to the State authorities to implement the
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government decision, which led to the filing of the petition before
the High Court praying for appropriate directions to continue to
treat the appellant and members of his community as belonging to
the scheduled tribe and for a direction to the State Government to
extend all the benefits admissible to members of the scheduled tribes 5
to members of the Laskar community. This was resisted on the
ground that the Laskar community was never included in the
Presidential (ST) Order 1950, and as such there was no question of
exclusion from the list. In this backdrop though it was found that the
earlier two circulars of 1930 and 1941 as well as the document 10
related to census operation in the State indicated that Deshi Tripura
covered the Laskar class while there was another class called
'Tripura/Tripuri/Tippera' which did not relate to Laskar class and the
Presidential (ST) Order 1950 has admitted the three tribes of
Noatia, Jamatia and Riang in terms but while dealing with the two 15
classes of Puratan Tripura and Deshi Tripura covering the Laskar
class, it has adopted the description of those three items without
referring to Puratan or Deshi, it was held relying on B.
Basavalingappa Vs. D. Munichinnappa (supra) and Bhaiyalal Vs.
Harikishan Singh (supra) that enquiry is contemplated before the 20
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Presidential Order is made but any amendment to the Presidential
(ST) Order, 1950 can only be by legislation and the Court should not
assume jurisdiction and enter into an enquiry to determine whether
the three terms indicated in the Presidential (ST) Order, 1950
include Deshi Tripura and covers the Laskar community. However it 5
was considered appropriate to commend to the authorities
concerned that as and when the question is reviewed it should be
examined whether the claim of the appellant representing the Laskar
community to be included in the scheduled tribes is genuine and
Though Srish Kumar Choudhury Vs. State of Tripura
(supra) observes in relation to Dina Vs. Narayan Singh and Bhaiya
Ram Munda Vs. Anirudh Patar (supra) that these authorities clearly
indicate, that the entries in the Presidential (ST) Order, 1950 have to
be taken as final and the scope of enquiry and admissibility of 15
evidence is confined within the limitations indicated, it is however
material to note that Dina Vs. Narayan Singh and Bhaiya Ram
Munda Vs. Anirudh Patar (supra) both have been held not to lay
down the law correctly on the question by the Constitution Bench in
State of Maharashtra Vs. Milind (supra-para 27) and therefore the 20
observations in Srish Kumar Choudhury Vs. State of Tripura (supra)
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to the extent it indicates admissibility of evidence as indicated in
para 16 of the judgment, will have to be read in the context of what
has been held in State of Maharashtra Vs. Milind (supra-para 27).
15.4. Kumari Madhuri Patil Vs. Addl. Commissioner, Tribal
Development (supra) holds that Presidential declaration, subject to 5
amendment by Parliament being conclusive, no addition to it or
declaration of castes/tribes or sub-castes/parts of or groups of tribes
or tribal communities is permissible.
15.5. Palghat Jilla Thandan Samudhaya Samrakshna Samithi
Vs. State of Kerala (supra) after considering B. Basavalingappa Vs. D. 10
Munichinnappa, Bhaiyalal Vs. Harikishan Singh and Srish Kumar
Choudhury Vs. State of Tripura (supra) held that :
"18. These judgments leave no doubt that the Scheduled Castes
Order has to be applied as it stands and no enquiry can be held or
evidence let in to determine whether or not some particular 15
community falls within it or outside it. No action to modify the
plain effect of the Scheduled Castes Order, except as contemplated
by Article 341, is valid."
Though Palghat Jilla Thandan Samudhaya Samrakshna
Samithi Vs. State of Kerala (supra) in para 19, holds that the 20
Thandan community in that case having been listed in the Scheduled
Castes Order as it then stood, it was not open to the State
Government or, indeed, to the Court to embark upon an enquiry to
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determine whether a section of Ezhavas/Thiyyas which was called
Thandan in the Malabar area of the State was excluded from the
benefits of the Scheduled Castes Order, the position stands clarified
after considering Palghat Jilla Thandan Samudhaya Samrakshna
Samithi Vs. State of Kerala (supra) in the subsequent judicial 5
pronouncements as indicated under. However in spite of this, the
ratio in Palghat Jilla Thandan Samudhaya Samrakshna Samithi Vs.
State of Kerala (supra) would be what has been stated in para 18 as
quoted above and therefore it can be said that it does not lay down
any proposition that evidence is permissible to be let in and 10
examined for determining the inclusion or exclusions in the entry, as
is being contended. It in fact speaks out a position which indicates
that the entires in the Presidential (ST) Order, 1950 are inviolate.
15.6. Nityanand Sharma Vs. State of Bihar (supra) holds thus :
"15.It is for Parliament to amend the law and the Schedule 15
and include in and exclude from the Schedule, a tribe or
tribal community or part of or group within any tribe or tribal
community for the State, District or region and its declaration
is conclusive. The Court has no power to declare synonyms as
equivalent to the Tribes specified in the Order or include in or 20
substitute any caste/tribe etc. It would thus be clear that for
the purpose of the Constitution, "Scheduled Tribes" defined
under Article 366(25) as substituted (sic) under the Act, and
the Second Schedule thereunder are conclusive. Though
evidence may be admissible to a limited extent of finding out 25
whether the community which claims the status as Scheduled
Caste or Scheduled Tribe, was, in fact, included in the
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Schedule concerned, the Court is devoid of power to include
in or exclude from or substitute or declare synonyms to be of
a Scheduled Caste or Scheduled Tribe or parts thereof or
group of such caste or tribe."
Though Nityanand Sharma Vs. State of Bihar (supra) holds that
evidence may be admissible to a limited extent, the same would only
be for the purpose of finding out whether the community which
claims the status as Scheduled Caste or Scheduled Tribe, was, in fact,
included in the Schedule concerned as is held in B. Basavalingappa 10
Vs. D. Munichinnappa (supra) and not otherwise. Nityanand Sharma
Vs. State of Bihar (supra) also holds that the Court has no power to
declare synonyms as equivalent to the Tribes specified in the Order,
or include in or substitute any caste/tribe etc, and is devoid of power
to include in or exclude from or substitute or declare synonyms to be 15
of a Scheduled Caste or Scheduled Tribe or parts thereof or group of
such caste or tribe.
15.6.1. In Pankaj Kumar Saha Vs. Sub-Divisional Officer,
Islampur and others (1996) 8 SCC 264 it was held as under :
"6. It is now settled law that though evidence may be admissible to 20
the limited extent of finding out whether a caste which claims the
status as Scheduled Caste or Tribe was in fact included in the
Presidential notification as amended under the 1976 Act, the court
is devoid of power to include in or exclude from or substitute or
declare synonyms to be a Scheduled Caste or Scheduled Tribe. The 25
courts would only look into the notification issued by the President
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to see whether the name finds place in the notification? Saha caste
is expressly excluded from Sunri, a Scheduled Caste notified in the
notification issued by the President in relation to the State of West
Bengal which is conclusive. The certificate issued to the petitioner
is, therefore, clearly unconstitutional and a fraud on the 5
Constitution. The petitioner cannot be considered to be a
Scheduled Caste."
What has been said in Nityanand Sharma Vs. State of Bihar (supra)
regarding the admissibility of evidence would equally hold true for 10
what has been said in the first sentence in para 6 of Pankaj Kumar
Saha Vs. Sub-Divisional Officer, Islampur (supra). All this however
has to be viewed in light of what has been held by the Constitution
Bench in State of Maharashtra Vs. Milind (supra) as indicated
15.6.2. In S. Swvigaradoss Vs. Zonal Manager, F.C.I. (1996) 3
SCC 100 it has been held as under :
"8. The Courts, therefore, have no power except to give effect to
the notification issued by the President. It is settled law that the 20
Court would look into the public notification under Article 341(1)
or Article 342(1) for a limited purpose. The notification issued by
the President and the Act of Parliament under Scheduled Castes
and Scheduled Tribes Order (Amendment) Act, 1976 and the
Schedules appended thereto can be looked into for the purpose to 25
find whether the castes, races or tribes are (sicor) parts of or
groups within castes, races or tribes shall be Scheduled Castes for
the purposes of the Constitution. Under the Amendment Act,
1976, again Parliament has included or excluded from schedules
appended to the Constitution which are now conclusive. Schedule 30
I relates to Scheduled Castes and Schedule II relates to Scheduled
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Tribes. Christian is not a Scheduled Caste under the notification
issued by the President. In view of the admitted position that the
petitioner was born of Christian parents and his parents also were
converted prior to his birth and no longer remained to be Adi-
Dravida, a Scheduled Caste for the purpose of Tirunelveli District 5
in Tamil Nadu as notified by the President, petitioner cannot claim
to be a Scheduled Caste. In the light of the constitutional scheme
civil court has no jurisdiction under Section 9 of CPC to entertain
the suit. The suit, therefore, is not maintainable. The High Court,
therefore, was right in dismissing the suit as not maintainable and 10
also not giving any declaration sought for."
15.7. In State of Maharashtra Vs. Milind (supra) the question
which was under consideration before the learned Constitution
Bench, the factual background, the questions framed and the
"(1) Whether at all, it is permissible to hold inquiry and let in
evidence to decide or declare that any tribe or tribal
community or part of or group within any tribe or tribal
community is included in the general name even though it is
not specifically mentioned in the entry concerned in the 20
Constitution (Scheduled Tribes) Order, 1950?"
(2) Whether "Halba-Koshti" caste is a sub-tribe within the
meaning of Entry 19 (Halba/Halbi) of the said Scheduled
Tribes Order relating to the State of Maharashtra, even 25
though it is not specifically mentioned as such?
The controversy was as under :
5. The High Court allowed the writ petition and quashed the 30
impugned orders inter alia holding that it was permissible to
inquire whether any subdivision of a tribe was a part and
parcel of the tribe mentioned therein and that "Halba-Koshti"
is a subdivision of main tribe "Halba/Halbi" as per Entry 19 in
the Scheduled Tribes Order applicable to Maharashtra. Hence 35
the State of Maharashtra has come up in appeal by special
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leave, questioning the validity and correctness of the order of
the High Court allowing the writ petition of Respondent 1."
As to the provisions of Articles 341 and 342 of the Constitution,
upon consideration of the debates of the Constituent Assembly
"11. By virtue of powers vested under Articles 341 and 342 of
the Constitution of India, the President is empowered to issue
public notification for the first time specifying the castes, races
or tribes or part of or groups within castes, races, or tribes
which shall, for the purposes of the Constitution be deemed to 10
be Scheduled Castes or Scheduled Tribes in relation to a State
or Union Territory, as the case may be. The language and terms
of Articles 341 and 342 are identical. What is said in relation to
Article 341 mutatis mutandis applies to Article 342. The
laudable object of the said articles is to provide additional 15
protection to the members of the Scheduled Castes and
Scheduled Tribes having regard to social and educational
backwardness from which they have been suffering since a
considerable length of time. The words "castes" or "tribes" in
the expression "Scheduled Castes" and "Scheduled Tribes" are 20
not used in the ordinary sense of the terms but are used in the
sense of the definitions contained in Articles 366(24) and
366(25). In this view, a caste is a Scheduled Caste or a tribe is
a Scheduled Tribe only if they are included in the President's
Orders issued under Articles 341 and 342 for the purpose of 25
the Constitution. Exercising the powers vested in him, the
President has issued the Constitution (Scheduled Castes)
Order, 1950 and the Constitution (Scheduled Tribes) Order,
1950. Subsequently, some orders were issued under the said
articles in relation to Union Territories and other States and 30
there have been certain amendments in relation to Orders
issued, by amendment Acts passed by Parliament.
12. Plain language and clear terms of these articles show (1)
the President under clause (1) of the said articles may with 35
respect to any State or Union Territory and where it is a State,
after consultation with the Governor, by public notification
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specify the castes, races or tribes or parts of or groups within
the castes, races or tribes which shall for the purposes of the
Constitution be deemed to be Scheduled Castes/Scheduled
Tribes in relation to that State or Union Territory as the case
may be; (2) under clause (2) of the said articles, a notification 5
issued under clause (1) cannot be varied by any subsequent
notification except by law made by Parliament. In other words,
Parliament alone is competent by law to include in or exclude
a caste/tribe from the list of Scheduled Castes and Scheduled
Tribes specified in notifications issued under clause (1) of the 10
said articles. In including castes and tribes in Presidential
Orders, the President is authorised to limit the notification to
parts or groups within the caste or tribe depending on the
educational and social backwardness. It is permissible that only
parts or groups within them be specified and further to specify 15
castes or tribes thereof in relation to parts of the State and not
to the entire State on being satisfied that it was necessary to do
so having regard to social and educational backwardness. The
States had opportunity to present their views through
Governors when consulted by the President in relation to 20
castes or tribes, parts or groups within them either in relation
to the entire State or parts of State. It appears that the object
of clause (1) of Articles 341 and 342 was to keep away
disputes touching whether a caste/tribe is a Scheduled
Caste/Scheduled Tribe or not for the purpose of the 25
Constitution. Whether a particular caste or a tribe is Scheduled
Caste or Scheduled Tribe as the case may be, within the
meaning of the entries contained in the Presidential Orders
issued under clause (1) of Articles 341 and 342, is to be
determined looking to them as they are. Clause (2) of the said 30
articles does not permit any one to seek modification of the
said orders by leading evidence that the caste/Tribe (A) alone
is mentioned in the Order but caste/Tribe (B) is also a part of
caste/Tribe (A) and as such caste/Tribe (B) should be deemed
to be a Scheduled Caste/Scheduled Tribe as the case may be. It 35
is only Parliament that is competent to amend the Orders
issued under Articles 341 and 342. As can be seen from the
entries in the schedules pertaining to each State whenever one
caste/tribe has another name it is so mentioned in the brackets
after it in the schedules. In this view it serves no purpose to 40
look at gazetteers or glossaries for establishing that a particular
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caste/tribe is a Scheduled Caste/Scheduled Tribe for the
purpose of Constitution, even though it is not specifically
mentioned as such in the Presidential Orders. Orders once
issued under clause (1) of the said articles, cannot be varied by
subsequent order or notification even by the President except 5
by law made by Parliament. Hence it is not possible to say that
State Governments or any other authority or courts or
Tribunals are vested with any power to modify or vary the said
Orders. If that be so, no inquiry is permissible and no evidence
can be let in for establishing that a particular caste or part or 10
group within tribes or tribe is included in Presidential Order if
they are not expressly included in the Orders. Since any
exercise or attempt to amend the Presidential Order except as
provided in clause (2) of Articles 341 and 342 would be futile,
holding any inquiry or letting in any evidence in that regard is 15
neither permissible nor useful.
15.Thus it is clear that States have no power to amend
Presidential Orders. Consequently, a party in power or the
Government of the day in a State is relieved from the pressure
or burden of tinkering with the Presidential Orders either to 20
gain popularity or secure votes. Number of persons in order to
gain advantage in securing admissions in educational
institutions and employment in State services have been
claiming as belonging to either Scheduled Castes or Scheduled
Tribes depriving genuine and needy persons belonging to 25
Scheduled Castes and Scheduled Tribes covered by the
Presidential Orders, defeating and frustrating to a large extent
the very object of protective discrimination given to such
people based on their educational and social backwardness.
Courts cannot and should not expand jurisdiction to deal with 30
the question as to whether a particular caste, sub-caste; a
group or part of tribe or sub-tribe is included in any one of the
entries mentioned in the Presidential Orders issued under
Articles 341 and 342 particularly so when in clause (2) of the
said article, it is expressly stated that the said Orders cannot be 35
amended or varied except by law made by Parliament. The
power to include or exclude, amend or alter Presidential Order
is expressly and exclusively conferred on and vested with
Parliament and that too by making a law in that regard. The
President had the benefit of consulting the States through 40
Governors of States which had the means and machinery to
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find out and recommend as to whether a particular caste or
tribe was to be included in the Presidential Order. If the said
Orders are to be amended, it is Parliament that is in a better
position to know having the means and machinery unlike
courts as to why a particular caste or tribe is to be included or 5
excluded by law to be made by Parliament. Allowing the State
Governments or courts or other authorities or Tribunals to hold
inquiry as to whether a particular caste or tribe should be
considered as one included in the schedule of the Presidential
Order, when it is not so specifically included, may lead to 10
problems. In order to gain advantage of reservations for the
purpose of Article 15(4) or 16(4) several persons have been
coming forward claiming to be covered by Presidential Orders
issued under Articles 341 and 342. This apart, when no other
authority other than Parliament, that too by law alone can 15
amend the Presidential Orders, neither the State Governments
nor the courts nor Tribunals nor any authority can assume
jurisdiction to hold inquiry and take evidence to declare that a
caste or a tribe or part of or a group within a caste or tribe is
included in Presidential Orders in one entry or the other 20
although they are not expressly and specifically included. A
court cannot alter or amend the said Presidential Orders for
the very good reason that it has no power to do so within the
meaning, content and scope of Articles 341 and 342. It is not
possible to hold that either any inquiry is permissible or any 25
evidence can be let in, in relation to a particular caste or tribe
to say whether it is included within Presidential Orders when it
is not so expressly included."
After considering the various judicial pronouncements in B. 30
Basavalingappa Vs. D. Munichinnappa; Bhaiya Lal Vs. Harikishan
Singh; Parsram Vs. Shivchand; Srish Kumar Choudhury Vs. State of
Tripura ; Palghat Jilla Thandan Samudhaya Samrakshna Samithi Vs.
State of Kerala; Nityanand Sharma Vs. State of Bihar (supra) as well
as Dina Vs. Narayan Singh and Bhaiya Ram Munda Vs. Anirudh Patar, 35
WP 12 of 2022.odt
(supra), on the subject till then, the opinion has been rendered as
under :
"(1) It is not at all permissible to hold any inquiry or let in any
evidence to decide or declare that any tribe or tribal community
or part of or group within any tribe or tribal community is 5
included in the general name even though it is not specifically
mentioned in the entry concerned in the Constitution
(Scheduled Tribes) Order, 1950.
(2) The Scheduled Tribes Order must be read as it is. It is not
even permissible to say that a tribe, sub-tribe, part of or group of 10
any tribe or tribal community is synonymous to the one
mentioned in the Scheduled Tribes Order if they are not so
specifically mentioned in it.
(3) A notification issued under clause (1) of Article 342,
specifying Scheduled Tribes, can be amended only by law to be 15
made by Parliament. In other words, any tribe or tribal
community or part of or group within any tribe can be included
or excluded from the list of Scheduled Tribes issued under clause
(1) of Article 342 only by Parliament by law and by no other
(4)4. It is not open to State Governments or courts or tribunals
or any other authority to modify, amend or alter the list of
Scheduled Tribes specified in the notification issued under clause
(1) of Article 342.
(5) 5. Decisions of the Division Benches of this Court in Bhaiya 25
Ram v Anirudh Patar and [(1970) 2 SCC 825 : (1971) 1 SCR
804] and Dina v Narain Singh [38 ELR 212 : (1968) 8 DEC 329]
did not lay down law correctly in stating that the inquiry was
permissible and the evidence was admissible within the
limitations indicated for the purpose of showing what an entry in 30
the Presidential Order was intended to be. As stated in Position
(1) above no inquiry at all is permissible and no evidence can be
let in, in the matter."
The view that the entries in the Presidential (ST) Order 1950, were 35
inviolate and no inquiry was permissible, nor any evidence could be
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led to contend that any tribe, sub-tribe was a part of the tribe which
was included in the Presidential (ST) Order 1950, thus stood
confirmed.
15.7.1. In Mana Adim Jamat Mandal Vs. State of Maharashtra
(supra-HC) the controversy in question was whether the members of 5
the 'Mana' community especially in Vidarbha region fall under Entry
18 of the Scheduled Castes and Scheduled Tribes Orders,
(Amendment) Act, 1976 and are entitled to be treated as members of
the Scheduled Tribe. The Government Resolution dated 24/04/1985
and Government Resolution dated 19/06/1985 directing not to treat 10
the members of the 'Mana' community as belonging to Scheduled
Tribe unless they establish relationship and/or affinity with 'Gond'
tribe were also sought to be quashed. The learned Division Bench
also noted that in the Government Resolution dated 24/04/1985
certain guidelines had been issued to the competent authorities for 15
issuing caste certificates to persons belonging to Scheduled Tribes
and Annexure to the said Government Resolution mentioned that
'Mana' is a sub-tribe of 'Gond' and persons belonging to 'Gond Mana'
community call themselves as 'Gond' ; their language, culture, traits,
surnames, deities were similar like 'Gond' and language of 'Gond 20
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Mana' is Gondi. It also noted that the annexure further mentioned
that there is independent community known as 'Mana', but this
'Mana' community had no connection with 'Gond Mana' which is a
sub-tribe of 'Gond'. The Annexure further indicated in Column 4 the
tribes which were likely to take advantage of the similarity of their 5
names with the Tribe 'Mana', and the Competent Authority should be
aware of spurious claims. It also noted that by further Government
Resolution of 19/06/1985 directions had been issued that members
of 'Mana' community which had affinity or relation to 'Gond' tribe
were alone entitled to and eligible for grant of caste certificate of 10
Scheduled Tribe. It also noted the contention of the petitioner that
when 'Mana' are included in Entry 18 of Presidential (ST) Order
1950, on account of the amendment effected in 1976, all the
persons belonging to 'Mana' community are liable to be treated as
belonging to Scheduled Tribe. Thus inspite of the amendment of 15
1976, the above referred to Government Resolutions, required
affinity to be established to the Tribe 'Gond', by a person belonging
to 'Mana', community for the purpose of obtaining a Tribe Certificate
and the consequent validity. After taking into consideration State of
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Maharashtra Vs. Milind (supra) in the above background it was held
as under :
"26. In our opinion what has been stated by Scheduled Castes
Order issued under Article 341 of the Constitution must apply
to the Scheduled Tribes Order issued under Art. 342 of the 5
Constitution. Plain reading of Entry 18 would show that Mana
community is included in Scheduled Tribes and it is not
permissible for the State Government or the Courts to deny the
benefits available to the Scheduled Tribe community to the
members belonging to the Mana community. In the light of the 10
clear dictum of the Supreme Court in Palghat Thandan's case,
the State Government has no jurisdiction to issue the impugned
Government Resolutions of 1985 and Government Resolution
of 1995 declaring Mana community as Special Backward Class.
The modification of Scheduled Tribe Order can only be made 15
by the Parliament under the provisions of Art. 342. 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 20
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 25
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 30
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 35
Scheduled Tribes Order.
28. At the cost of repetition we may mention that there is no
tribe mentioned in Entry 18 as Gond Mana. The decision of the
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Government that Mana cannot stand alone to be qualified as
Scheduled Tribe is clearly contrary to the plain language of
Entry 18 of the Scheduled Tribes Order. What the State
Government says is that the only Gond Manas can qualify as
Scheduled Tribe under Entry 18. The entry has not been read as 5
it is, evidence has been allowed to consider the entry which is
not permissible in view of the decision of the Supreme Court in
Milind's case which holds that no evidence can be led for the
purpose of construing the entry."
It would be necessary to note that Mana Adim Jamat Mandal Vs.
State of Maharashtra (supra-HC) does not hold that any community,
tribe, sub-tribe or parts thereof which claim to be included in the
tribe 'Mana', stood included in the said tribe and were therefore
entitled to the benefit of grant of a Scheduled Tribe certificate and 15
the resultant benefits. It plain and simply holds that a person
belonging to the 'Mana', community in the State would be entitled to
Scheduled Tribe status and the stand of the State Government that it
is only Gond Manas who can qualify as Scheduled Tribe under Entry
18 was incorrect, in view of which the above referred to Government 20
Resolution was struck down.
15.7.2. Mana Adim Jamat Mandal Vs. State of Maharashtra
(supra-HC) was carried to the Hon'ble Apex Court by the State of
Maharashtra. In State of Maharashtra Vs. Mana Adim Jamat Mandal,
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(supra-SC) while speaking about entry 18 itself the following has
been held regarding the entries in the Presidential (ST) Order 1950 :
"9. It is now well-settled principle of law that no authority, other
than Parliament by law, can amend the Presidential Orders.
Neither the State Governments nor the courts nor the tribunals 5
nor any authority can assume jurisdiction to hold inquiry and
take evidence to declare that a caste or a tribe or part of or a
group within a caste or tribe is included in the Presidential
Orders in one entry or the other although they are not expressly
and specifically included. A court cannot alter or amend the said 10
Presidential Orders for the very good reason that it has no
power to do so within the meaning, content and scope of
Articles 341 and 342. It is not possible to hold that either any
inquiry is permissible or any evidence can be let in, in relation
to a particular caste or tribe to say whether it is included within 15
the Presidential Orders when it is not so expressly included or
exclude a particular caste or tribe or group of castes or tribes
when they are expressly included.
30. The common pattern found in most of the group entries is
that there is a punctuation mark comma (,) between one entry 20
and another entry in the group signifying that each one of them
is deemed to be a separate Scheduled Tribe by itself. In the
present case, Entry 18 of the Schedule clearly signifies that each
of the tribe mentioned therein is deemed to be a separate tribe
by itself and not a sub-tribe of "Gond". "Gond" is a Scheduled 25
Tribe, it is not disputed. As already noticed that "Gond"
including Arakh or Arrakh, etc. found in Entry 12 of the
Amendment Act 63 of 1956 has been done away with by the
Amendment Act of 1976. In Entry 18 of the Second Schedule of
the Amendment Act of 1976 the word "including" was 30
deliberately omitted, which signifies that each one of the tribes
specified in Entry 18 is deemed to be a separate tribe by itself.
Therefore, "Mana" is not a sub-tribe of "Gond" but a separate
tribe by itself and is a Scheduled Tribe."
It was thus held that the tribe 'Mana', in entry 18 of the Presidential
(ST) Order 1950, on account of the amendment of 1976, acquired an
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independent status of a Scheduled Tribe. What has been held in
Mana Adim Jamat Mandal (supra) both by the High Court as well as
by the Apex Court does not indicate that any tribe, sub-tribe or parts
thereof claiming similarity of names with the Scheduled Tribe 'Mana'
in entry 18 of the Presidential (ST) Order 1950, should be included 5
in the entry.
15.8. The Full bench of this Court in Shilpa Vishnu Thakur Vs.
State of Maharashtra, 2009 SCC OnLine Bom 705 : (2009) 3 Mah LJ
995 in this context has held as under :
"Attempts were made over a period of time by certain persons 10
belonging to non-tribal communities to claim tribal status, on the
assertion that their community is synonymous with a tribal
group which is specified in the notification, or that their tribe is
subsumed in a tribe which is specifically notified. The
nomenclatures of the communities of such applicants were 15
similar to those of designated Scheduled Tribes, often with a
tribal prefix or suffix. For instance, non-tribal communities
include- Koli (Son Koli, Suryawanshi Koli, Vaiti Koli), Dhangar,
Munnurwar/Marmerwar/ Mannawar and Koshti/Halba Koshti.
Decisions of the Supreme Court laid down that the entries 20
contained in the Scheduled Caste or the Scheduled Tribes Order
have to be taken as they stand and no evidence can be led either
to interpret or to explain those entries. A tribe which is not
specifically named as a Scheduled Tribe cannot lay claim to
inclusion, either on the basis of a similarity of nomenclature or 25
by contending that the tribe in question is subsumed within a
designated Scheduled Tribe."
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15.8.1. In respect of a claim that tribe "Gowari" is part of
Scheduled Tribe "Gond Gowari", which is included in Entry 18 for
Maharashtra in the Presidential (ST) Order, 1950, in State of
Maharashtra Vs. Keshao Vishwanath Sonone (supra) the following
"42.1.(1) Whether the High Court in the writ petition giving rise
to these appeals could have entertained the claim of the caste
"Gowari", which is not included as Scheduled Tribe in the
Constitution (Scheduled Tribes) Order, 1950, that it be declared
a Scheduled Tribe as "Gond Govari" which is included at Item 10
18 of the Constitution (Scheduled Tribes) Order, 1950
applicable in the State of Maharashtra and further to take
evidence to adjudicate such claim?
42.2.(2) Whether the ratio of the judgment of the Constitution
Bench of this Court in B. Basavalingappa v. D. Munichinnappa 15
[B. Basavalingappa v D. Munichinnappa, AIR 1965 SC 1269]
permits the High Court to take evidence to find out whether
"Gowari" are "Gond Gowari" and is there any conflict in the
ratio of the judgment of the Constitution Bench in
B.Basavalingappa [B. Basavalingappa v. D. Munichinnappa, AIR 20
1965 SC 1269] and subsequent Constitution Bench judgment of
this Court in State of Maharashtra v. Milind [State of
Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] ?
42.3.(3) Whether the High Court could have entered into the
adjudication of the issue that "Gond Gowari" which is a 25
Scheduled Tribe mentioned in the Scheduled Tribes Order, 1950,
as amended up to date is no more in existence and was extinct
before 1911?"
"65. In view of the ratio of judgments [B. Basavalingappa v. D.
Munichinnappa, AIR 1965 SC 1269] , [Bhaiya Lal v. Harikishan
Singh, AIR 1965 SC 1557] of this Court as noticed above, the
conclusion is inescapable that the High Court could not have 35
entertained the claim or looked into the evidences to find out
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and decide that tribe "Gowari" is part of Scheduled Tribe "Gond
Gowari", which is included in the Constitution (Scheduled
Tribes) Order, 1950. It is further clear that there is no conflict in
the ratio of Constitution Bench judgments of this Court in B.
Basavalingappa case [B. Basavalingappa v. D. Munichinnappa, 5
AIR 1965 SC 1269] and State of Maharashtra v. Milind [State of
Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] .
The ratio of B. Basavalingappa case [B. Basavalingappa v. D.
Munichinnappa, AIR 1965 SC 1269] as noted in para 6 of the
judgment and extracted above is reiterated by subsequent two 10
Constitution Bench judgments in Bhaiya Lal case [Bhaiya Lal v.
Harikishan Singh, AIR 1965 SC 1557] and Milind case [State of
Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] .
There being no conflict in the ratio of the above three
Constitution Bench judgments [State of Maharashtra v. Milind, 15
(2001) 1 SCC 4 : 2001 SCC (L&S) 117], [B. Basavalingappa v. D.
Munichinnappa, AIR 1965 SC 1269], [Bhaiya Lal v. Harikishan
Singh, AIR 1965 SC 1557] , we do not find any substance in the
submission of Shri Rohatgi that for resolving the conflict, the
matter need to be referred to a larger Constitution Bench. We, 20
thus, answer Questions 1 and 2 in the following words:
65.1. The High Court in the writ petition giving rise to these
appeals could not have entertained the claim of a caste "Gowari"
that it be declared a Scheduled Tribe as "Gond Gowari" included
at Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 25
nor could the High Court have taken evidence to adjudicate the
above claim.
65.2. There is no conflict in the ratio of the judgments of
Constitution Benches of this Court in B. Basavalingappa case [B.
Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269] and 30
Milind case [State of Maharashtra v. Milind, (2001) 1 SCC 4 :
2001 SCC (L&S) 117] .
92. The High Court could not have entered into the issue that
"Gond Gowari" which was Scheduled Tribe mentioned in 35
Constitution (Scheduled Tribes) Order, 1950 as amended up to
1976 is no more in existence and became extinct before 1911"
98. We have further noticed the census of 1891 and 1901 which
have been referred by the High Court. The population of 40
"Gowari" has been shown separately from the population of
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"Gond Gowari". We have also noticed the ratio of the
Constitution Bench judgment of this Court in Basavalingappa
[ B. Basavalingappa v. D. Munichinnappa AIR 1965 SC 1269]
and Bhaiya Lal [Bhaiya Lal v harikishan Singh AIR 1965 SC
1557] as well as Milind [State of Maharashtra v Milind (2001) 1 5
SCC 4 : 2001 SCC (L&S) 117] . The High Court could not have
undertaken the enquiry to declare the caste which is not
included in the Scheduled Tribes Order, 1950 as a Scheduled
Tribe. The High Court could not have granted a declaration that
the caste "Gowari" is "Gond Gowari" which is referred to in Item 10
28 of Entry 18 of Constitutional Scheduled Tribes Order, 1950
amended as on date."
Thus a similar plea, as is now being raised in the present case in
respect of the Scheduled Tribe 'Mana', in the same entry 18 of the 15
Presidential (ST) Order 1950, for the State of Maharashtra, was
turned down in State of Maharashtra Vs. Keshao Vishwanath Sonone
(supra) on the ground that such an exercise into the entry in the
Presidential (ST) Order 1950, was not permissible.
15.9. It is also material to take note that in State of 20
Maharashtra Vs. Keshao Vishwanath Sonone (supra) the Court has in
relation to State of Maharashtra Vs. Mana Adim Jamat Mandal
(supra-SC) held as under :
"105. What was laid down by this Court in Mana Adim Jamat
Mandal [State of Maharashtra v. Mana Adim Jamat Mandal 25
(2006) 4 SCC 98] with regard to "Mana" which was also a tribe
included in Entry 18 is not applicable with regard to Entry "Gond
Gowari". With the "Gowari" word "Gond" is prefixed. The
expression "Gond Gowari" clearly expresses that the community
"Gond Gowari" has to do with tribe "Gond". The community 30
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"Mana" has no such indication and insofar as "Gond Gowari" is
concerned we are clear in our view that "Gond Gowari" is a
community which has affinity with "Gond" and is sub-tribe of
"Gond". The entry of "Gond Gowari" in Scheduled Tribes Order,
1950 was as a sub-tribe of "Gond" which is clear from a report of 5
the Backward Classes Commission, 1955. When the inclusion of
the entry "Gond Gowari" was as (sub-tribe of Gond), its affinity
with "Gond" cannot be ignored on any basis."
doubting the correctness of the ratio in State of Maharashtra Vs. 10
Mana Adim Jamat Mandal (supra-SC) with regard to a group entry,
on the ground that there has to be some purpose for joining number
of tribes together in one entry and that the affinity of 'Gond Gowari',
was more than apparent with 'Gond', and therefore affinity was
required to be established with 'Gond', no infirmity was found in 15
Government Resolution dated 24/04/1984 insofar as Scheduled
Tribe "Gond Gowari" is concerned.
15.10. The contention therefore that B. Basavalingappa Vs. D.
Munichinnappa and Bhaiya Lal Vs. Harikishan Singh (supra) create a
green zone or window of interference to make an enquiry or let in 20
evidence, which has been confirmed by the Constitutional Bench in
State of Maharashtra Vs. Milind (supra) based upon para 7 of B.
Basavalingappa Vs. D. Munichinnappa and para 28 of State of
Maharashtra Vs. Milind (supra) as urged by Mr. Anturkar learned
WP 12 of 2022.odt
Senior Counsel and other Counsels supporting him, has to be
considered in light of the above position, as well as the language
used in para 28 of State of Maharashtra Vs. Milind (supra), which is
quoted as under :
"28. Being in respectful agreement, we reaffirm the ratio of the 5
two Constitution Bench judgments aforementioned and state in
clear terms that no inquiry at all is permissible and no evidence
can be let in, to find out and decide that if any tribe or tribal
community or part of or group within any tribe or tribal
community is included within the scope and meaning of the 10
entry concerned in the Presidential Order when it is not so
expressly or specifically included. Hence, we answer Question 1
in the negative."
Though the first sentence in State of Maharashtra Vs. Milind (supra) 15
reaffirms the ratio in B. Basavalingappa Vs. D. Munichinnappa and
Bhaiya Lal Vs. Harikishan Singh (supra) the same cannot be read in
isolation and will have to be read in light of what the latter part of
the paragraph holds that no inquiry at all is permissible and no
evidence can be let in, to find out and decide that if any tribe or 20
tribal community or part of or group within any such tribe or tribal
community is included within the scope, ambit and meaning of the
concerned entry in the Presidential (ST) Order 1950 when it is not
so expressly or specifically included, which in fact is the ratio in B.
Basavalingappa Vs. D. Munichinnappa and Bhaiya Lal Vs. Harikishan 25
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Singh (supra). Thus an isolated sentence cannot be relied upon to
contend that the ratio of the earlier two Constitution Bench decisions
have been reaffirmed, without either looking to the background in
which the statement has been made and the totality of the context in
15.11. That what is quoted in the latter part of para 28 in State
of Maharashtra Vs. Milind (supra) is the ratio in B. Basavalingappa
Vs. D. Munichinnappa and Bhaiya Lal Vs. Harikishan Singh (supra) is
further elucidated from State of Maharashtra Vs. Keshao Vishwanath
15.12. In State of Maharashtra Vs. Keshao Vishwanath Sonone
(supra) it has been clarified by the Hon'ble Apex Court that the ratio
in B. Basavalingappa Vs. D. Munichinnappa was as stated in para 6
of the judgment and not para 7, and a similar argument as is been
canvassed by Mr. Anturkar learned Senior Counsel and learned 15
Counsels supporting him, has been turned down, which is further
apparent from what has been stated in paras 48 and 49 of State of
Maharashtra Vs. Keshao Vishwanath Sonone (supra) :
"48. Shri Rohatgi, learned Senior Counsel appearing for the
appellant has placed much reliance on AIR para 7 of the 20
judgment [B. Basavalingappa v. D. Munichinnappa AIR 1965 SC
1269] and has contended that this Court approved the exercise
undertaken by the High Court to find out which was the Bhovi
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caste, which was included in the Constitution (Scheduled
Tribes) Order, 1950, hence, an evidence was rightly looked into
by the High Court, which received approval by this Court. Shri
Rohatgi further submits that although in B. Basavalingappa v. D.
Munichinnappa AIR 1965 SC 1269] the factum that there was 5
no caste in Mysore State before reorganisation known as Bhovi
at all was not disputed but the fact that whether it is disputed
or not disputed shall not make any difference, whenever the
issue is raised that has been answered by the courts looking
49. The observations made by this Court in B. Basavalingappa
v. D. Munichinnappa AIR 1965 SC 1269] in AIR para 7 in no
manner dilutes the ratio of the judgment as laid down in AIR
para 6 quoted above. This Court approved the High Court
exercise of looking into the evidence to determine which was 15
the caste which was meant by the word "Bhovi" in the Order in
the peculiar circumstances of the case where the fact was not
disputed that there was no caste known as Bhovi in Mysore
State before 1956. In para 7, these following two observations
made by this Court are in full accord with the ratio as laid 20
down in para 6, they are : (AIR p. 1271, para 7)
"7. ... It cannot be accepted that the President included
the caste Bhovi in the Order though there was no such
caste at all in Mysore State as it existed before 1956. ... If
there was a caste known as Bhovi as such in Mysore State 25
as it existed before 1956, evidence could not be given to
prove that any other caste was included in the Bhovi
caste."
It is thus apparent that the ratio in the two Constitution Bench 30
decisions in B. Basavalingappa Vs. D. Munichinnappa and Bhaiya Lal
Vs. Harikishan Singh (supra), as clarified in State of Maharashtra Vs.
Milind (supra) after taking into consideration all the judgments in
between as indicated above, and as spelt out from State of
Maharashtra Vs. Keshao Vishwanath Sonone (supra), is that no 35
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inquiry at all is permissible and no evidence can be let in, to find out
and decide that any tribe or tribal community or part of or group
within any such tribe or tribal community is included within the
scope and meaning of the entry concerned in the Presidential (ST)
Order 1950 when it is not so expressly or specifically included and in 5
case any addition or deletion is to be made, that is within the sole
domain of the Parliament by enacting a law, in that regard in
exercise of the powers under Article 342(2) of the Constitution.
15.13. In Baliram Vs. Gajanan and others 2023 (3) Mh.L.J. 737 ,
again a reference in respect of applicability of the provisions of 10
Section 3 of the Maharashtra Restoration of Lands to Scheduled
Tribes, Act, 1974, while considering the provisions of Article 342(1)
of the Constitution the learned Full Bench of this Court has held that
the tribes and tribal communities or their parts or subgroups within
them can be deemed to be the Schedule Tribes only when the 15
President after due consultation, specifies them to be so by a public
Notification which shows that the tribal assumes the character of a
Scheduled Tribe only upon his recognition to be so by exercise of
powers under Article 342 by the President or to put it differently by
operation of law and till the time the President does not act and 20
include his tribe in the specified list of Scheduled tribe which is
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under the Presidential (ST) Order 1950, a tribal would remain a
tribal only, and would not be of the "Scheduled Tribe" within the
meaning of Article 366 Entry 25 read with Article 342 of the
Constitution. It has also been held that unless a tribe or tribal
community or any part thereof or groups within it or them is or are 5
included in the Schedule to the Presidential (ST) Order 1950, the
same cannot be called a Scheduled Tribe.
15.14. Another Full Bench of this Court in Sanjay Krushna
Katkar Vs. State of Maharashtra and another along with connected
matters 2023 SCC OnLine Bom 1834 while deciding the reference to 10
it of a question in relation to the Atrocities Act has held that from the
reading of Article 341 and 342, it can be comprehended that it is
only those castes, races or tribes or part of or group within any caste,
race or tribe as prescribed in the Presidential order, shall be deemed
15.15. Thus the argument based on B. Basavalingappa Vs. D.
Munichinnappa and Bhaiya Lal Vs. Harikishan Singh (supra) and
other judgments as indicated above, to contend that evidence was
permissible to be let in, in respect of an entry in the Presidential (ST)
Order 1950, to demonstrate that a tribe or sub-tribe or parts thereof 20
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were included in the entry in the Schedule to the Presidential (ST)
Order 1950, is clearly untenable in law and is hereby rejected.
15.16. The above judicial pronouncements would therefore
unequivocally indicate that the entries in the Scheduled Tribes Order,
1950, are inviolate and have to be read as it is; no enquiry of any 5
nature whatsoever is permissible to find out whether any tribe, sub-
tribe or parts thereof have been included in such entries in the
Presidential (ST) Order 1950 as non-mention of any tribe, sub-tribe
or part/s thereof would necessarily mean their specific exclusion.
WHAT Gajanan Pandurang Shende Vs. Head Master,
Govt. Ashram School, Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee and Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
16. Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School (supra) was a case in which the petitioner claimed to
belong to 'Mana' Scheduled Tribe, which claim was rejected by the
Caste Scrutiny Committee, which rejection came to be challenged 20
before the learned Division Bench of this Court. Though on facts
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considering the pre-constitutional documents, which recorded the
caste of the petitioner therein as 'Mana', the claim may have been
said to be well founded, however the learned Division Bench, though
it relied upon State of Maharashtra Vs. Milind (supra) and noticed
the overruling of Dina Vs. Narayan Singh (supra) held in para 11 5
thereof that :
"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 10
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."
Having said so, the Division Bench, inexplicably, went on to hold as
"12. In view of the decision of the Constitution Bench in
Milind's case, any tribe or tribal community or part of or group
within any tribe can be excluded from the list of Scheduled
Tribes issued under Clause (1) of Article 342 of the Constitution
of India only by the Parliament by law and by no other 20
authority. 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 25
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 30
the decision Dina's case."
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16.1. That the above is the position and what was intended to
be said by the learned Division Bench, in Gajanan Pandurang Shende
Vs. Head Master, Govt. Ashram School (supra) is further evident from
Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee (supra) in which the following position is reiterated by 5
the learned Division Bench :
"23. In our view, appreciation of evidence and interpretation of
the caste/tribe entries contained in the documents is not
prohibited. What is prohibited is the interpretation of
caste/tribe entries in the Constitution (Scheduled 10
Castes/Scheduled Tribes) Order. For instance, if there are
hundred documents like in this case, containing different kinds
of entries of caste/tribe like 'Mana', 'Mane', 'Mani', 'Mana
Kunbi', 'Kshatriya Mana', 'Khand Mana', 'Maratha Mana' and so
on, the duty of the Court will be to ascertain the dominant 15
entries having greater probative value and record a specific
finding of conclusive nature as to whether entries can be
construed as 'Mana Scheduled Tribe', which is an entry in the
cluster of tribes at Serial No. 18 in the Constitution (Scheduled
Tribes) Order. Merely because certain documents indicate entry 20
of caste/tribe other than 'Mana' is not enough to reject the
claim. What is prohibited is that the entry 'Mana' in Scheduled
Tribes Order does not include or exclude the entries like 'Mana
Kunbi', 'Kshatriya Mana', 'Khand Mana', 'Maratha Mana', 'Kunbi
Mana' and so on, which are probably known to exist as 25
separate caste/tribe or sub-caste/tribe. The interpretation,
clarification, explanation of the entries in the Scheduled Tribes
Order is not permitted. The interpretation of entries in the
documents cannot be confused with the interpretation entry in
In respect of Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School (supra), it has been clarified as under :
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"24. ---------. In para 12, we have held " To hold that 'Mana' in
Entry No. 18 in the Constitution (Scheduled Tribes) Order does
not include 'Kshatriya Badwaik Mana', 'Maratha Mana', 'Kunbi
Mana', etc., would amount to permitting evidence to be let in to
exclude certain 'Mana' communities from the recognized 5
Scheduled Tribe." This observation is made after recording a
specific finding that the entries in the documents having
probative value are interpreted and held to be of 'Mana'
community and not 'Kshatriya Mana', 'Badwaik Mana',
'Maratha Mana' 'Kunbi Mana', etc. If on interpretation of 10
entries in the document, it is held that entries are of 'Kshatriya
Mana', 'Badwaik Mana', 'Badwaik Mana', 'Maratha Mana',
'Kunbi Mana', etc., the claim cannot be validated. The test to
be applied is to find out first whether the entries contained in
the documents produced are to be interpreted as the entry 15
'Mana', and whether it resembles with the entry 'Mana' at
serial No. 18 in the cluster of entries in the Constitution
(Scheduled Tribes) Order, represented by tribe 'Gond'."
16.2. It is thus evident that what has been held in Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School (supra), 20
which has been followed in Gitesh Narendra Ghormare Vs. Scheduled
Tribe Certificate Scrutiny Committee (supra) is that 'Mana' in Entry
No. 18 in the Presidential(ST) Order 1950, includes 'Kshatriya
Badwaik Mana', 'Maratha Mana', 'Kunbi Mana', etc., and not doing
so, would amount to permitting evidence to be let in to exclude 25
certain 'Mana' communities from the recognized Scheduled Tribe.
17. This is in stark contrast to the admitted position that the
entry 'Mana', no.18 in the Constitution (ST) Order, 1950, was and
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is, a singular entry and did not include any of its so called sub-tribes
or parts thereof by whatever names, synonyms known. Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School (supra),
thus created an Umbrella/ Cluster out of the singular entry 'Mana',
in entry no.18- and brought under it, all those tribes/ sub-tribes or 5
parts thereof having a similar name, including those having any
prefix or suffix to the word 'Mana', by holding that 'Kashtriya
Badwaik Mana', 'Maratha Mana', 'Kunbi Mana', etc., stood included
in the original entry no.18 'Mana', by mis-applying the ratio in State
of Maharashtra Vs. Milind (supra) and then held that since these 10
stand included in the original entry no.18- 'Mana', no evidence could
be let in to exclude these communities from the singular entry
no.18-'Mana' and deny them the status of a Scheduled Tribe. The
result whereof has the effect of all those tribal communities, which
have the word 'Mana', with whatever prefix or suffix to it, now 15
because of Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School and Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee (supra), would be deemed to stand
included in the singular entry 'Mana', in entry no.18 of the
Presidential (ST) Order 1950 and therefore entitled to claim 20
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scheduled tribe status. This is further evident from what has been
stated by the Division Bench in para 18 of its judgment in Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School (supra),
which is as under :
"18. Applying the law laid down in E. V. Chinnaiah's case , it has 5
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 10
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 15
such persons from the entry 'Mana', to be recognized as
Scheduled Tribe, amounts to interference, rearrangement,
regrouping 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 20
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, 25
therefore, committed an error in rejecting the claim by holding
that the documents produced simply indicate the caste 'Mana'
and not 'Mana, Scheduled Tribe'.
19. In our view, the concept of recognized Scheduled Tribe for
the purposes of giving benefits and concessions was not 30
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. The documents are issued in the
printed format, which contains a column under the heading
'Caste' and there is no column of tribe. Irrespective of the fact 35
that it is a tribe, the name of tribe is shown in column of caste.
While entering the name, the distinction between caste and
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tribe is ignored. It is the entire 'Mana' community all over the
State, which is conferred a status of a recognized Scheduled
Tribe in the State. The entry 'Mana' at serial No. 18 in the
Constitution (Scheduled Tribes) Order has, therefore, to be read
as it is and no evidence can be led to exclude certain 5
communities of 'Mana' from granting protection or benefits. The
finding of the Committee to that extent cannot, therefore, be
sustained."
17.1. This was so done in spite of noting what was held by the
Hon'ble Apex Court in E. V. Chinnaiah Vs. State of A.P. and others 10
(2005) 1 SCC 394, as understood by the Division Bench itself, as is
indicated in para 17 thereof, which reiterated the position that the
entry in the Presidential (SC) Order was inviolate. The following
indicates this position :
"17. Apart from the challenge to competency of the State 15
Legislature to tinker with the Presidential Scheduled Castes
Order, a challenge was also considered in E.V. Chinnaiah's case
that the said enactment creates classification or micro-
classification of the Scheduled Castes violating Article 14 of the
Constitution of India. While deciding the question before it, the 20
Apex Court has laid down the principles of law, which are
summed up as under:"
"(A) There can be only one List of Scheduled Castes in regard to
a State and it includes all specified castes, races or tribes or part
or groups notified in that Presidential List. [Para 14] 25
(B) Any inclusion or exclusion from the said list can only be
done by an Act by the Parliament, under Article 341(2) of the
Constitution of India. Para 141
(C) That except for a limited purpose of making exclusion or
inclusion in the List by an Act of Parliament there is no 30
provision in the entire constitution either to subdivide, sub-
classify or sub-group these castes which are found in the
Presidential List of Scheduled Castes. [Para 14]
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(D) Any executive action or legislative enactment which
interferes, disturbs, rearranges, regroups, reclassifies the various
castes found in the Presidential List will be violative of the
scheme of constitution and will be violative of Article 341 of the
(E) The Castes once included in the Presidential List, form a
class by themselves. Any division of these classes of persons
based on any consideration would amount to tinkering with
Presidential List. [Para 28]
(F) The conglomeration of castes given in Presidential Order, 10
should be considered as representing a class as a whole. If a
class within a class of members of the Scheduled Castes is
created, the same would amount to tinkering with the List. Such
sub-classification would be violative of Article 14 of the
17.2. In E. V. Chinnaiah Vs. State of A.P. (supra) by the Andhra
Pradesh Scheduled Castes (Rationalisation of Reservations) Act,
2000, [which was preceded by an ordinance in that regard] the 57
scheduled castes enumerated in the Presidential (SC) Order, 1950 for 20
the State of Andhra Pradesh, came to be rearranged in 4 groups A, B,
C and D, based on inter se backwardness, and separate quota in
reservation for each of these groups was fixed, challenge to which
was dismissed by the High Court. The matter went before the hon'ble
Apex Court before the Constitution Bench which in relation to 25
Article 341 of the Constitution held as under :
"13. We will first consider the effect of Article 341 of the
Constitution and examine whether the State could, in the guise
of providing reservation for the weaker of the weakest, tinker
with the Presidential List by subdividing the castes mentioned 30
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in the Presidential List into different groups. Article 341 which
is found in Part XVI of the Constitution refers to special
provisions relating to certain classes which includes the
Scheduled Castes. This article provides that the President may
with respect to any State or Union Territory after consultation 5
with the Governor thereof by public notification, specify the
castes, races or tribes or parts of or groups within castes, races
or tribes which shall for the purposes of this Constitution be
deemed to be Scheduled Castes in relation to that State or
Union Territory. This indicates that there can be only one list of 10
Scheduled Castes in regard to a State and that list should
include all specified castes, races or tribes or part or groups
notified in that Presidential List. Any inclusion or exclusion
from the said list can only be done by Parliament under Article
341(2) of the Constitution. In the entire Constitution wherever 15
reference has been made to "Scheduled Castes" it refers only to
the list prepared by the President under Article 341 and there is
no reference to any subclassification or division in the said list
except, maybe, for the limited purpose of Article 330, which
refers to reservation of seats for Scheduled Castes in the House 20
of the People, which is not applicable to the facts of this case. It
is also clear from Article 341 that except for a limited power of
making an exclusion or inclusion in the list by an Act of
Parliament there is no provision either to subdivide, subclassify
or subgroup these castes which are found in the Presidential 25
List of Scheduled Castes. Therefore, it is clear that the
Constitution intended all the castes including the subcastes,
races and tribes mentioned in the list to be members of one
group for the purpose of the Constitution and this group could
not be subdivided for any purpose. A reference to the 30
Constituent Assembly in this regard may be useful at this stage.
19.This part of the Constituent Assembly Debate coupled with
the fact that Article 341 makes it clear that the State Legislature
or its executive has no power of "disturbing" (term used by Dr.
Ambedkar) the Presidential List of Scheduled Castes for the 35
State. It is also clear from the articles in Part XVI of the
Constitution that the power of the State to deal with the
Scheduled Castes List is totally absent except to bear in mind
the required maintenance of efficiency of administration in
making of appointments which is found in Article 335. 40
Therefore any executive action or legislative enactment which
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interferes, disturbs, rearranges, regroups or reclassifies the
various castes found in the Presidential List will be violative of
scheme of the Constitution and will be violative of Article 341
of the Constitution."
E. V. Chinnaiah Vs. State of A.P. (supra) even goes a step further by
holding that the entries in the Presidential (SC) Order, 1950 cannot
even be interfered, disturbed, rearranged, regrouped or re-classified,
in any manner whatsoever, apart from holding the legislative
incompetence of the State to do so. The language of Article 341 of 10
the Constitution being identical to Article 342, except that Article
342 refers to Scheduled Tribes, what has been said about Article 341
would equally hold good for Article 342 too.
17.3. As pointed out above, State of Maharashtra Vs. Milind
(supra) after considering B. Basavalingappa Vs. D. Munichinnappa ; 15
Bhaiya Lal Vs. Harikishan Singh ; Srish Kumar Choudhury; Palghat
Jilla Thandan Samudhaya Samithi Vs. State of Kerala and Nityanand
Sharma Vs. State of Bihar (supra) and other judgments on the issue
as indicated above, hold that the entries in the Presidential (ST)
Order 1950, were inviolate and could not be tinkered with ; nor 20
could be construed as an umbrella, so as to include any sub-tribe or
part thereof, in such entry. The judicial dictum as flowing from the
above judicial pronouncements is clear and explicit. Thus when the
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scheduled Tribe 'Mana', was included in entry 18 and was granted
the benefit of Scheduled Tribe Status, it was only the Tribe 'Mana',
alone which could claim such status and none else, whatever be its
prefix or suffix with the word 'Mana', or interse relation with 'Mana'.
In that view of the matter no tribe/community, sub-tribe or part 5
thereof by whatever names like 'Badwaik Mana', 'Khand Mana',
'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana', 'Mani/
Mane', etc. could be said to have been included in the tribe 'Mana',
which was accorded a scheduled Tribe status by its inclusion in entry
18. This is more so for the reason that while including the tribe 10
'Mana', in entry 12 and later on in entry 18, the President cannot be
said to be oblivious of the existence of the sub-tribes or groups which
had prefixes or suffixes, synonyms with 'Mana', and thus the
exclusion will have to be held as intentional and deliberate. Any
inclusion of these so called tribes/communities, sub-tribes or parts 15
thereof in the Scheduled Tribe 'Mana', on account of their claim of
being included in the scheduled Tribe 'Mana', would now only be
permissible by a law to be enacted by the Parliament in exercise of
the powers under Article 342(2) of the Constitution after following
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the due procedure as is contemplated in Article 338-A of the
Constitution and not otherwise.
17.4. Thus what has been held by the Division Bench in
Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram School
and Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate 5
Scrutiny Committee (supra) is totally contrary to what has been laid
down by the Four Constitutional Benches in B. Basavalingappa Vs. D.
Munichinnappa; Bhaiya Lal Vs. Harikishan Singh; State of
Maharashtra Vs. Milind and so also in E. V. Chinnaiah Vs. State of A.P.
(supra) that the entry in the Constitution (ST) Order has to be read 10
as it is. The fact that whenever the President wanted to include sub-
tribes or parts thereof of a tribe, having synonyms, prefixes or
suffixes, and thus wanted to confer a scheduled tribe status upon
such sub-tribes/ communities or parts thereof, an according entry
was in fact included in that regard in the Presidential (ST) Order, 15
1950, has been clearly ignored by the learned Division Bench in
Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram School
and Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee (supra).
17.5. Umesh Ganeshrao Jambhore Vs. 20
Vice-Chairman/Member-Secretary Scheduled Tribe Caste Certificate
WP 12 of 2022.odt
Scrutiny Committee (supra) in so far as it holds that the issue is
covered in Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee (supra) and the committee ought to have
recorded specific findings of conclusive nature as to whether other
entries, (such as 'Mane Kunbi', 'Mani Kunbi', 'Mane' and 'Mani') can 5
be construed as 'Mana' Scheduled Tribe as held in Gitesh Narendra
Ghormare Vs. Scheduled Tribe Certificate Scrutiny Committee (supra)
would also suffer from the same infirmity. That apart though Umesh
Ganeshrao Jambhore Vs. Vice-Chairman/Member-Secretary
Scheduled Tribe Caste Certificate Scrutiny Committee (supra) 10
considers Mana Adim Jamat Mandal Vs. State of Maharashtra (supra-
HC) in holding that in view of it, the Government Resolutions dated
24/04/1985, 19/06/1985 and 15/06/1995 on the basis of which
'Mana' community was sought to be divided artificially into different
categories, like Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 15
'Kunbi Mana', 'Maratha Mana', 'Gond Mana', 'Mani'/'Mane', etc., for
the grant of benefits available to the Scheduled Tribes, did not
survive, it does not consider State of Maharashtra Vs. Keshao
Vishwanath Sonone (supra), or the dictum of the above four
Constitution Benches in B. Basavalingappa Vs. D. Munichinnappa ; 20
WP 12 of 2022.odt
Bhaiya Lal Vs. Harikishan Singh ; State of Maharashtra Vs. Milind and
E. V. Chinnaiah Vs. State of A.P. (supra).
17.6. It is therefore apparent that what the learned Division
Benches hold in Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School and Gitesh Narendra Ghormare Vs. Scheduled Tribe 5
Certificate Scrutiny Committee (supra), which has been relied in
Umesh Jambhore Vs. Vice Chairman , (supra) is contrary to what has
been held in B. Basavalingappa Vs. D. Munichinnappa ; Bhaiya Lal
Vs. Harikishan Singh ; State of Maharashtra Vs. Milind and so also in
17.7. It would thus be clear that any claim by any tribe, sub-
tribe or parts of such tribe or sub-tribe whether having any similarity,
prefix/suffix, synonymity, with the name of the tribe as mentioned
in the Presidential (ST) Order 1950, of being included in such
Scheduled Tribe, would not be permissible. No enquiry in respect of 15
such a claim is permissible. No enquiry of any nature whatsoever is
permissible with reference to any material, whatever it may be and
in whatever form, to interpret or construe the entries in the
Presidential (ST) Order 1950, which have to be read as it is. The
Scheduled Tribe 'Mana', in Entry 18, has to be read as only and only 20
'Mana', and not as an umbrella or community and therefore tribes
WP 12 of 2022.odt
with similar/synonymous names or names with prefix/suffix to
'Mana' cannot claim any social status of a Scheduled Tribe. Thus
persons belonging to tribes or sub-tribes such as 'Badwaik Mana',
'Khand Mana', 'Kshatriya Mana', 'Kshatriya Badwaik Mana', 'Kunbi
Mana', 'Maratha Mana', 'Gond Mana', 'Mani'/'Mane', 'Mane Ku', 5
'Mana Ku', 'Ku Mana', 'Mana Kunbi', 'Patil Mana', etc. cannot be held
to be included in the Scheduled Tribe 'Mana', in entry 18 in the
Presidential (ST) Order 1950 and thus cannot claim the status of a
Scheduled Tribe.
17.8. In our considered opinion, Gajanan Pandurang Shende 10
Vs. Head Master, Govt. Ashram School and Gitesh Narendra
Ghormare Vs. Scheduled Tribe Certificate Scrutiny Committee (supra)
do not lay down the correct law and militate against what has been
held in B. Basavalingappa Vs. D. Munichinnappa; Bhaiya Lal Vs.
Harikishan Singh ; State of Maharashtra Vs. Milind and so also in E. 15
V. Chinnaiah Vs. State of A.P. (supra). Umesh Ganeshrao Jambhore Vs.
Vice-Chairman/Member-Secretary Scheduled Tribe Caste Certificate
Scrutiny Committee (supra) in as much as it relies upon Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School and Gitesh
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny 20
Committee (supra) would also be infirm. The answer to question no.
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A has therefore to be in the affirmative. The first part of Question
no. B is answered in the affirmative and the second part in the
negative. Question No. C thus has to be answered in the negative.
18. The provisions of the Maharashtra Scheduled Castes, 5
Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category
(Regulation of Issuance and Verification of) Caste Certificate, Act
2000 (referred to as the Maharashtra Caste Verification Act, 2000)
and the Maharashtra Caste Verification Rules, 2003 framed 10
thereunder, which codify the broad principles enunciated in Kumari
Madhuri Patil Vs. Addl. Commissioner, Tribal Development (supra) as
amended in 2012, are germane for deciding Question -D. The
Certificate Scrutiny Committee is constituted under Section 6(1) of
the Maharashtra Caste Verification Act, 2000. The verification and 15
validation of the caste certificate issued by the Competent Authority
is mandatory for availing of the benefits of the concession provided
in that regard. The procedure to be followed by the Scrutiny
Committee for verification and validation of the caste certificate is to
be as prescribed as indicated by Section 6(4) of the aforesaid Act. 20
WP 12 of 2022.odt
The Maharashtra Caste Verification Act, 2000 does not prescribe any
such procedure. One has to look at the Maharashtra Caste
Verification Rules 2003 in that regard.
18.1. Before that, the procedure to be followed by the 5
Competent Authority for issuance of caste certificate, needs to be
considered. The same can be found in Rule 5 of the Maharashtra
Caste Verification Rules, 2003 as amended in 2012. Rule 5(2)
mandates that an application for caste certificate has to be in Form I
replete with the information as required therein. Under Rule 5(5) 10
the Competent Authority has to scrutinize the claim of the applicant
and satisfy itself about the genuineness of the claim. Under Rule
5(6) the Competent Authority is enjoined to verify the original
documents, and if satisfied about the correctness of the information,
documents and evidence furnished by the applicant, to issue the 15
caste certificate. The proviso to Rule 5(6) is material inasmuch as it
states that if a validity certificate of the father in blood relation or
real uncle or any other relative of the applicant in blood relation
from paternal side granted by the Scrutiny Committee has been
submitted by the applicant, the Competent Authority shall issue 20
WP 12 of 2022.odt
caste certificate without asking for any other document or proof, by
considering that validity certificate as an important evidence. It is
thus apparent that if a validity certificate of the blood relation from
the paternal side is produced by the applicant that is deemed to be
an important evidence dispensing with the requirement of any other 5
document or proof in support of the claim made. This is obviously
for the reason that once a claim of belonging to a particular
scheduled Tribe has been accepted by the Scrutiny Committee and
the relationship of the claimant on the paternal side, to the person
holding such validated claim, is not disputed, or is found to be 10
correct, the entire exercise of scrutiny and verification need not be
carried out again.
18.2. In other cases, Rule 5(11) of the Caste Verification
Rules, 2003, mandates that after considering the evidence produced
by the applicant or any other person on his behalf, the statement of 15
the applicant and material gathered by the Competent Authority, if it
is satisfied about the genuineness of the claim, the certificate has to
be issued to the applicant within the time frame of 45 days from the
date of the application. Of course, reasons for doing so have to be
recorded. In case, the Competent Authority is not satisfied about the 20
WP 12 of 2022.odt
genuineness of the claim, it has the authority to reject the claim for
validity of a caste certificate, which can then be questioned by an
appeal before the Appellate Authority under Rule 7.
18.3. Rules 14 to 23 deal with the powers of the Scrutiny 5
Committee in the matter of verification of the caste certificate
already issued by the Competent Authority. Rule 16 requires that the
application duly sworn and copies of supporting documents duly
attested have to be submitted. The documents which are required to
be submitted are delineated in Rules 16(a) to (h). The explanation 10
to Rule 16 mandates that if no objection or complaint is received
with regard to such application filed for validating the caste claim,
then the District Caste Certificate Scrutiny Committee will issue
caste validity certificate, without asking for other documents of
proof by considering the validity certificate of the father of the 15
applicant in blood relation or real uncle or any other blood relative
from the paternal side, if filed along with the application, as an
important evidence.
18.4. Rule 17(6) of the Maharashtra Caste Certificate Rules,
2003, as amended in 2012, also mandates that if the Scrutiny 20
WP 12 of 2022.odt
Committee upon appreciation of the material placed before it, is
satisfied about the genuineness of the claim it shall forthwith issue
the validity certificate in Form - 20, without enquiry by the Vigilance
Cell.
18.5. It is only where the Scrutiny Committee upon 5
examination of the documents and other evidence as furnished by
the applicant is of the opinion that the documents do not satisfy or
conclusively prove the claim, only in that case the Committee is
entitled to refer the claim to the Vigilance Cell for carrying out
suitable enquiry, which has to be in consonance with what is spelt 10
out in Rule 13 of the Maharashtra Caste Verification Rules, 2003.
The burden to establish that a person belongs to a particular
Scheduled Tribe is upon the person making such claim [See :
Chairman and Managing Director, Food Corporation of India Vs.
18.6. The Hon'ble Apex Court in Anand Vs. Committee for
Scrutiny and Verification of Tribe Claims and others (supra) has held
that the scope of enquiry by the Vigilance Officer was not restricted
to verification of the documents but also includes affinity tests and
older documents have higher probative value which must be given 20
WP 12 of 2022.odt
regard to. Referring to Kumari Madhuri Patil Vs. Addl.
Commissioner, Tribal Development (supra), it has been held that the
genuineness of the caste claim has to be considered not only on the
thorough examination of the documents submitted in support of the
claim but also on the affinity test which would include the 5
anthropological and ethnological tests, etc. of the applicant. The
burden of proving the caste/tribe claim is upon the applicant and the
Caste Scrutiny Committee merely preforms the role of verification of
the claim and therefore, can only scrutinize the documents and
material produced by the applicant, which in case if not sufficient to 10
prove the claim, the Committee cannot gather evidence on its own to
prove or disprove his claim. The position has also been considered in
Mah. Adiwasi Thakur Jamat Swarakshan Samiti Vs. State of
Maharashtra and others 2023 SCC OnLine SC 326 , in which the
Larger Bench which was constituted to resolve the conflict between 15
Vijakumar Vs. State of Maharashtra and others (2010) 14 SCC 489
and Anand Vs. Committee for Scrutiny and Verification of Tribe
Claims and others (supra) regarding the affinity test after
considering the position laid down in the Maharashtra Caste
Verification Act of 2000 and Maharashtra Caste Verification Rules of 20
WP 12 of 2022.odt
2003, as well as Shilpa Vishnu Thakur Vs. State of Maharashtra
(supra) has held as under :
"23. In a given case, the Scrutiny Committee may be satisfied that
the caste validity certificate relied upon by the applicant has been
issued after making a lawful enquiry. But it if the Scrutiny 5
Committee is of the view that the applicant has not clearly
established that the person to whom caste validity certificate
produced on record has been granted is his blood relative, in terms
of sub-rule (2) of Rule 12 of the ST Rules, the Caste Scrutiny
Committee will have to refer the case for conducting an enquiry 10
through Vigilance Cell. In such a case, the Vigilance Cell can be
directed by the Scrutiny Committee to conduct an enquiry limited
to the relationship claimed by the applicant with the person in
whose favour the caste validity certificate has been issued. If, on
the basis of the report of the Vigilance Cell, the Scrutiny 15
Committee is satisfied that the person in whose favour caste
validity certificate has been issued is a blood relative of the
applicant and lawful enquiry has been conducted before issuing
the validity certificate, the Scrutiny Committee will have to issue
validity certificate even if the applicant does not satisfy the affinity 20
test. For example, if it is established that the father or grandfather
of the applicant has been given a caste validity certificate after
holding a lawful enquiry in accordance with law, the Caste
Scrutiny Committee cannot hold that the grandfather or father of
the applicant, as the case may be, belongs to Scheduled Tribe but 25
the applicant does not belong to Scheduled Tribe. Only if the
relationship as pleaded by the applicant is not established, the
other evidence produced by the applicant and the result of the
affinity test can be taken into consideration by the Scrutiny
26. There is an argument made that as far as SC Rules are
concerned, clause (d) of Rule 13 specifically provides for Vigilance
Cell conducting an affinity test and there is no such pari materia
provision in the ST Rules. We are unable to accept this submission
as sub-rule (4) of Rule 12 of the ST Rules enjoines the vigilance 35
officer to collect facts about the social status of the applicant or his
parents, as the case may be. Therefore, sub-rule (5) provides for
the examination of the applicant and his parents. For verification
of social status as contemplated by sub-rule (4) of Rule 12 of the
WP 12 of 2022.odt
ST Rules, in a given case affidavit test can be resorted to by the
Vigilance Cell.
32. We have recorded similar reasons earlier for coming to the
conclusion that affinity test will not always be mandatory and/or
34. Therefore, as observed earlier, the decision in the case of
Vijakumar Vs. State of Maharashtra & Ors. (2010) 14 SCC 489,
cannot be read as a binding precedent laying down a legal
principle that in every case of verification of caste claim, the Caste
Scrutiny Committee is under a mandate to refer the case to the 10
Vigilance Cell. As under the scheme of ST Rules, affinity test is to
be conducted by the Vigilance Cell, it follows that question of
conducting of affinity test will arise only when a case is made out
for referring the case to Vigilance Cell. If the Scrutiny Committee,
after holding an enquiry is satisfied with the material produced on 15
record, without referring the case to the Vigilance Cell, the Caste
Scrutiny Committee is under a mandate to grant validity to the
caste certificate. As noted earlier, in a given case, the Scrutiny
Committee can order a limited inquiry by the Vigilance Cell. For
example, if an applicant is relying upon a caste validity certificate 20
granted to his blood relative and the Scrutiny Committee, after
finding that the certificate is issued after due inquiry entertains a
doubt about the relationship pleaded, it can direct the Vigilance
Cell to make inquiry only about the relationship.
(a) Only when the Scrutiny Committee after holding an enquiry is
not satisfied with the material produced by the applicant, the case
can be referred to Vigilance Cell. While referring the case to
Vigilance Cell, the Scrutiny Committee must record brief reasons
for coming to the conclusion that it is not satisfied with the 30
material produced by the applicant. Only after a case is referred to
the Vigilance Cell for making enquiry, an occasion for the conduct
of affinity test will arise.
(b) For the reasons which we have recorded, affinity test cannot be
conclusive either way. When an affinity test is conducted by the 35
Vigilance Cell, the result of the test along with all other material
on record having probative value will have to be taken into
consideration by the Scrutiny Committee for deciding the caste
validity claim; and
(c)In short, affinity test is not a litmus test to decide a caste claim 40
and is not an essential part in the process of the determination of
WP 12 of 2022.odt
correctness of a caste or tribe claim in every case."
18.7. In Priya Pramod Gajbe Vs. The State of Maharashtra
and others 2023 SCC Online SC 909, it has been held as under :
"13. This Court has held that while applying the Affinity Test which 5
focuses on the ethnological connections with the Scheduled Tribe, a
cautious approach has to be adopted. It has been held that a few
decades ago, when the tribes were somewhat immune to the cultural
development happening around then, the affinity test could serve as a
determinative factor. However, with the migrations, modernisation 10
and contact with other communities, these communities tend to
develop and adopt new traits which may not essentially match with
the traditional characteristics of the tribe. Hence, the affinity test may
not be regarded as a litmus test for establishing the link of the
applicant with a Scheduled Tribe. It has been held that the claim by a 15
person belonging to the Scheduled Tribe cannot per se be disregarded
on the ground that his present traits do not match his tribe's peculiar
anthropological and ethnological traits etc. It has been held that
though the Affinity Test may be used to corroborate the documentary
evidence, it should be the sole criteria to reject the claim ." 20
18.8. In fact it appears probable that the efficacy of the
affinity test has been lost. This is because of two reasons : the first
one being, as indicated above, due to passage of time and
development of the society, migration, etc. the old customs, traits 25
and usages have now been lost as we have adopted the changes in
the Society. The old norms, traits, traditions are no more extant and
relevant due to change in the societal circumstances, the advances in
WP 12 of 2022.odt
technology, to which there is a rapid adaptation in haste to adapt for
fear of being left behind, though a section of the society is striving to
keep them relevant; the distances being reduced to a stage where
they lose their relevance. The second is the deletion of the word
'including' in entry 18. It appears that the word 'including' was the 5
reason for the affinity test to be devised for it is only when there is a
requirement to establish an inclusion into something, in this case,
the tribe 'Gond' as it earlier stood prior to the deletion of the word
'including' after it, in entry 18, that there was a need for looking to
the traits, anthropological and ethnological data, so that a claim by a 10
person belonging to the other entries (sub-tribes) in entry 18, to be
included in the tribe 'Gond' in entry 18 could be established. Now on
account of the word 'including' after the word 'Gond' in entry 18,
being deleted and the punctuation mark comma (,) having been
inserted after each entry, all the entries therein have acquired an 15
independent status of a Scheduled Tribe [except Gond-Gowari in
view of State of Maharashtra Vs. Keshao Vishwanath Sonone
(supra)] in themselves and thus now there may be no requirement
to establish that any of the sub-tribes which were listed in entry 18
after the word 'including' would be included in the tribe 'Gond'. To 20
WP 12 of 2022.odt
cite an example, for a person belonging to the tribe 'Mana' to claim
Scheduled Tribe status, earlier it was necessary for such person to
demonstrate that the tribe 'Mana' had affinity to tribe 'Gond' for
which the traits, customs, usages, ethnological data, reports etc were
to be looked into, to infer or establish its inclusion in the Scheduled 5
Tribe 'Gond' in order that the person belonging to the 'Mana' tribe
could be entitled to be granted a validity, of belonging to the
Scheduled Tribe, which would in turn entitle him to claim benefit of
reservation. However since the word 'including' in entry 18 after the
word 'Gond', stood deleted and 'Mana' was conferred a Scheduled 10
Tribe status independently, the necessity of establishing affinity with
the Scheduled Tribe 'Gond' no longer remains extant. This may be
equally true for all those entries in the State of Maharashtra where
earlier there was a word 'including' after the earliest entry and
followed by sub-tribes, thus, requiring affinity to be established to 15
the original entry in order to claim Scheduled Tribe status.
18.9. Though in State of Maharashtra Vs. Keshao Vishwanath
Sonone (supra) what has been held in State of Maharashtra Vs.
Mana Adim Jamat Mandal (supra-SC) has been doubted, however
till the time it is set aside, the dictum in State of Maharashtra Vs. 20
WP 12 of 2022.odt
Mana Adim Jamat Mandal (supra-SC) would hold the field, in view
of which the Tribe 'Mana' in entry 18 in the Presidential (ST) Order
1950, would continue to be considered as an independent entry.
18.10. It is thus apparent that there is a clear cut distinction 5
between considering, an individual claim by a person of belonging to
a particular scheduled tribe of which an entry exits in the
Presidential (ST) Order 1950 on the one hand, and the entry made
in the Presidential (ST) Order 1950 on the other hand. While the
entry in the Presidential (ST) Order 1950, has to be read as it is, and 10
nothing is permissible to be considered while reading this entry as
indicated in our answer to Question No.A above; a claim by an
individual, of falling within that entry can be considered on the basis
of the documents and within the parameters of the Maharashtra
Caste Verification Act, 2000 and the Rules of 2003 as framed 15
thereunder in conjunction with what has been stated in Kumari
Madhuri Patil Vs. Addl. Commissioner, Tribal Development; Anand
Vs. Committee for Scrutiny and Verification of Tribe Claims and
others; Mah. Adiwasi Thakur Jamat Swarakshan Samiti Vs. State of
Maharashtra and Priya Pramod Gajbe Vs. The State of Maharashtra 20
WP 12 of 2022.odt
(supra) and not otherwise. This is the answer to Question -D.
REFERENCE WHETHER NECESSARY
19. As much ado has been made about it, the question also
to be addressed and answered is whether a reference was necessary 5
considering the three Constitution Bench decisions of the Hon'ble
Supreme Court in B. Basavalingappa Vs. D. Munichinnappa, Bhaiyya
Lal Vs. Harikishan Singh and State of Maharashtra Vs. Milind
(supra) and what has been held in Gajanan Pandurang Shende Vs.
Head Master, Govt. Ashram School, Gitesh Narendra Ghormare Vs. 10
Scheduled Tribe Certificate Scrutiny Committee and Umesh
Ganeshrao Jambhore Vs. Vice-Chairman/Member-Secretary,
Scheduled Tribe Caste Certificate Scrutiny Committee (supra). The
purpose of constituting a larger Bench is to bring about clarity in the
legal position, in view of the apparent conflict as noticed by the 15
referring Court.
19.1. The Bombay High Court Appellate Side Rules, 1960, in
this regard and specifically Rule 9A in Chapter I, indicates that
whenever a Division Bench shall differ from the decision of any
other Division Bench upon a point of law, the case shall be directed 20
WP 12 of 2022.odt
to be placed before the Hon'ble The Chief Justice for decision by a
larger Bench. The learned Division Bench in Maroti s/o Vyankati
Gaikwad and others Vs. Deputy Director & Member-Secretary, The
Scheduled Tribe Caste Certificate Scrutiny Committee (referring
petition) finding itself unable to agree with the propositions on 5
which Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram
School, Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee and Umesh Ganeshrao Jambhore Vs. Vice-
Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee (supra) were founded, in adopting the 10
procedure as laid down in Rule 9A of Chapter-I of the Bombay
Appellate Side Rules, 1960, did not in our considered opinion
commit any error, in formulating the questions for a decision by a
larger Bench.
19.2. That apart, in our considered opinion, a course which 15
could have been adopted by the learned Division Bench in Maroti
Vyankati Gaikwad (supra)[referring petition], would have been to
hold that Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram
School, Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee and Umesh Ganeshrao Jambhore Vs. Vice- 20
Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
WP 12 of 2022.odt
Scrutiny Committee (supra) did not lay down the correct proposition
in view of the Constitution Bench decision of the Hon'ble Apex Court
in State of Maharashtra Vs. Milind (supra) in which B.
Basavalingappa Vs. D. Munichinnappa, Bhaiyya Lal Vs. Harikishan
Singh; Srish Kumar Choudhury Vs. State of Tripura and Nityanand 5
Sharma Vs. State of Bihar etc. have been considered and therefore
decide Maroti Vyankati Gaikwad (supra) on merits. [see :National
Insurance Company Limited Vs. Pranay Sethi (supra)]. However, in
view of what Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School and Gitesh Narendra Ghormare Vs. Scheduled Tribe 10
Certificate Scrutiny Committee Gajanan (supra) do, in as much as
they consider the Scheduled Tribe 'Mana', in entry 18 - and upon
considering State of Maharashtra Vs. Milind (supra) interpret it in a
manner which is contrary to B. Basavalingappa Vs. D.
Munichinnappa, Bhaiyya Lal Vs. Harikishan Singh and State of 15
Maharashtra Vs. Milind (supra), it would mean that for the future
Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram School
and Gitesh Narendra Ghormare Vs. Scheduled Tribe Certificate
Scrutiny Committee Gajanan (supra) would hold the field as they
would constitute a binding precedent. This would be apparent from 20
WP 12 of 2022.odt
what has been done in Umesh Ganeshrao Jambhore Vs. Vice-
Chairman/Member-Secretary, Scheduled Tribe Caste Certificate
Scrutiny Committee (supra) itself. In that light of the matter, the
conflict and the resultant confusion sought to be created by Gajanan
Pandurang Shende Vs. Head Master, Govt. Ashram School and Gitesh 5
Narendra Ghormare Vs. Scheduled Tribe Certificate Scrutiny
Committee (supra) could only be resolved by a larger Bench and for
this reason too we do not see any merit in the contention that there
ought not to have been any reference at all.
19.3. Shrimanth Balasaheb Patil Vs. Karnataka Legislative 10
Assembly (2020) 2 SCC 595 relied upon by learned Counsel,
Mr. Bhandarkar, holds as under :
"160. Any question of law of general importance arising
incidentally, or any ancillary question of law having no
significance to the final outcome, cannot be considered as a 15
substantial question of law. The existence of substantial
question of law does not weigh on the stakes involved in the
case, rather, it depends on the impact the question of law will
have on the final determination. If the questions having a
determining effect on the final outcome have already been 20
decided by a conclusive authority, then such questions cannot
be called as "substantial questions of law". In any case, no
substantial question of law exists in the present matter, which
needs reference to a larger Bench. The cardinal need is to
achieve a judicial balance between the crucial obligation to 25
render justice and the compelling necessity of avoiding
prolongation of any lis.
161. Similar questions for reference to a larger Bench had
arisen in Abdul Rahim Ismail C. Rahimtoola v. State of Bombay
[Abdul Rahim Ismail C. Rahimtoola v. State of Bombay, AIR 30
1959 SC 1315 : 1960 Cri LJ 124] , wherein this Court rejected
WP 12 of 2022.odt
the reference as the questions sought to be referred were
already settled by an earlier five-Judge Bench. Likewise, this
Court in Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra [Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra, AIR 1965 SC 682 : (1965) 1 Cri LJ 608] , held 5
that a substantial question of interpretation of a provision of
the Constitution cannot arise when the law on the subject has
been finally and effectively decided by this Court. The same is
provided hereunder : (Bhagwan Swarup case [Bhagwan
Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 10
682 : (1965) 1 Cri LJ 608] , AIR p. 688, para 11)
"11. ... Learned counsel suggests that the question raised
involves the interpretation of a provision of the Constitution
and therefore the appeal of this accused will have to be
referred to a Bench consisting of not less than 5 Judges. 15
Under Article 145(3) of the Constitution only a case
involving a substantial question of law as to the
interpretation of the Constitution shall be heard by a Bench
comprising not less than 5 Judges. This Court held in State
of J&K v. Ganga Singh [State of J&K v. Ganga Singh, AIR 20
1960 SC 356] that a substantial question of interpretation of
a provision of the Constitution cannot arise when the law on
the subject has been finally and effectively decided by this
Court. ...
As the question raised has already been decided by this 25
Court, what remains is only the application of the principle
laid down to the facts of the present case. We cannot,
therefore, hold that the question raised involves a
substantial question of law as to the interpretation of the
Constitution within the meaning Article 145(3) of the 30
Constitution."
(emphasis supplied)
This Court sitting in a three-Judge Bench in PUCL v UOI ia, (2003) 4
SCC 399], has reiterated the above principle.
There cannot be any quarrel with the propositions laid down.
However in the instant matter the Full Bench has not been called
upon to interpret any provision of the Constitution, for Article 342 of
the Constitution already stands interpreted by the Hon'ble Apex
Court in the judgments from B. Basavalingappa Vs. D. 40
WP 12 of 2022.odt
Munichinnappa to State of Maharashtra Vs. Keshao Vishwanath
Sonone (supra). What has been referred to for an opinion is the
effect of the judicial pronouncements in Gajanan Pandurang Shende
Vs. Head Master, Govt. Ashram School and Gitesh Narendra
Ghormare Vs. Scheduled Tribe Certificate Scrutiny Committee 5
(supra) and the consequences which they may have, if permitted to
stand, for in that case, persons belonging to tribes with synonyms,
prefix and affix to the Scheduled Tribe 'Mana', may be declared as
Scheduled Tribes entitled to the benefits due to that status, resulting
in depriving the persons belonging to Mana Scheduled tribe, of the 10
said benefits, to which they are in fact due. Such a position cannot
be permitted to exist as that would clearly amount to granting a
premium to a Constitutionally invalid and impermissible position.
19.4. Mohd. Raees Vs. State of Maharashtra, 2022 SCC OnLine
Bom 1052 : (2022) 4 Mah LJ 353 was a case in which the learned 15
Full Bench did not find any conflict of law in the decision referred
by Division Bench, which was adjudicated purely on the facts and not
on interpretation indicated by Division Bench in reference order,
which is not the case in the present matter, in view of the discussion
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above. Mohd. Raees Vs. State of Maharashtra (supra) therefore does
not assist plea canvassed by learned Counsel Mr. Bhandarkar.
19.5. Central Board of Dawoodi Bohra Community and
another Vs. State of Maharashtra and another (2005) 2 SCC 673,
"12. Having carefully considered the submissions made by the
learned Senior Counsel for the parties and having examined the
law laid down by the Constitution Benches in the abovesaid
decisions, we would like to sum up the legal position in the
(1) The law laid down by this Court in a decision delivered by a
Bench of larger strength is binding on any subsequent Bench of
lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/
Ed.B.J./21/2005 dated 3-3-2005.] A Bench of lesser quorum 15
cannot disagree or dissent from the view of the law taken by a
Bench of larger quorum. In case of doubt all that the Bench of
lesser quorum can do is to invite the attention of the Chief
Justice and request for the matter being placed for hearing
before a Bench of larger quorum than the Bench whose decision 20
has come up for consideration. It will be open only for a Bench
of coequal strength to express an opinion doubting the
correctness of the view taken by the earlier Bench of coequal
strength, whereupon the matter may be placed for hearing
before a Bench consisting of a quorum larger than the one which 25
pronounced the decision laying down the law the correctness of
which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/
Ed.B.J./7/2005 dated 17-1-2005.] The above rules are subject to
two exceptions: (i) the abovesaid rules do not bind the discretion 30
of the Chief Justice in whom vests the power of framing the
roster and who can direct any particular matter to be placed for
hearing before any particular Bench of any strength; and (ii) in
spite of the rules laid down hereinabove, if the matter has
already come up for hearing before a Bench of larger quorum 35
WP 12 of 2022.odt
and that Bench itself feels that the view of the law taken by a
Bench of lesser quorum, which view is in doubt, needs correction
or reconsideration then by way of exception (and not as a rule)
and for reasons given by it, it may proceed to hear the case and
examine the correctness of the previous decision in question 5
dispensing with the need of a specific reference or the order of
the Chief Justice constituting the Bench and such listing. Such
was the situation in Raghubir Singh [(1989) 2 SCC 754] and
Hansoli Devi [(2002) 7 SCC 273] ."
In the present case the request for reference has been made by a
Bench of co-equal strength by disagreeing with the view as expressed
by the earlier two Benches of co-equal strength. The reference is
made by the Hon'ble The Chief Justice, as Master of the Roster by
accepting the request of the referring Division Bench of a need to do 15
so. The matter therefore would fall within the exception clause as
indicated in Central Board of Dawoodi Bohra Community Vs. State
of Maharashtra (supra).
19.6. We therefore are unable to subscribe to the plea that no
20. Though State of Orissa Vs. Md. Illiyas (supra) in
delineating as to what constitutes a precedent lays down that a
decision is an authority for what it actually decides and what is of
the essence in a decision is its ratio and not every observation found 25
WP 12 of 2022.odt
therein nor what logically flows from the various observations made
in the judgment and Career Institute Educational Society Vs. Om
Shree Thakurji Educational Society 2023 SCC Online 586 in which
State of Gujarat Vs. Utility Users' Welfare Association, (2018) 6 SCC
21 has been relied upon which propounds what is called, "the 5
inversion test" to identify what is ratio decidendi in a judgment and
states that to test whether a particular proposition of law is to be
treated as the ratio decidendi of the case, the proposition is to be
inversed, i.e. to be removed from the text of the judgment as if it did
not exist and if the conclusion of the case would still have been the 10
same even without examining the proposition, then it cannot be
regarded as the ratio decidendi of the case, are relied upon to
contend that even if para 18 in Gitesh Narendra Ghormare Vs.
Scheduled Tribe Certificate Scrutiny Committee (supra) is removed
by application of the inversion test, it would not make any difference 15
and the conclusion would remain the same and therefore there was
no conflict, it is necessary to note that if the conclusion therein is
removed the entire effect of the judgment would change, in as much
as para 18 in Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee (supra) crates an umbrella of the 20
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Scheduled Tribe 'Mana', in entry 18 of the Constitutional (ST) Order
1950, and includes within its sweep, Mane, Mani, Mannya and holds
that such entries will have to be treated as 'Mana'. Similar would be
the position in respect of Gajanan Pandurang Shende Vs. Head
Master, Govt. Ashram School (supra). Thus even applying the 5
inversion test, to Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School and Gitesh Narendra Ghormare Vs. Scheduled Tribe
Certificate Scrutiny Committee (supra) the ratio decidendi in both
the matters, is as indicated above of creating an Umbrella and
including within its sweep all tribes/sub-tribes or parts thereof, 10
which have a name synonymous to 'Mana', or have as prefix or suffix
the name 'Mana, which as discussed above, is clearly impermissible
in view of the language of Article 342 of the Constitution and what
has been held in B. Basavalingappa Vs. D. Munichinnappa to State of
Maharashtra Vs. Keshao Vishwanath Sonone (supra). 15
21. No doubt true that an interim order merges into a final
order [see National Bal Bhawan and another Vs. Union of India and
others (2003) 9 SCC 671 and B.P.L. Ltd. and others Vs. R. Sudhakar
and others (2004) 7 SCC 219 ; Kunhayammed and others Vs. State of 20
WP 12 of 2022.odt
Kerala and another (2000) 6 SCC 359 ] however the contention that
the interim order dated 27/06/2018 in Gitesh Narendra Ghormare
Vs. Scheduled Tribe Certificate Scrutiny Committee (supra) has been
relied for making the reference, is clearly misconceived, for the
reason that though the order of reference quotes the order dated 5
27/06/2018 in para 27(i) that is not the reason for making the
reference. As stated above the reference has been made for the
reason that the learned Division Bench in Maroti Vyankati Gaikwad
(supra) had found that the view taken in Gajanan Pandurang Shende
Vs. Head Master, Govt. Ashram School and Gitesh Narendra 10
Ghormare Vs. Scheduled Tribe Certificate Scrutiny Committee (supra)
was contrary to the view in B. Basavalingappa Vs. D. Munichinnappa
to State of Maharashtra Vs. Keshao Vishwanath Sonone (supra).
22. The further contention that the reference is made on a 15
mistaken impression that Anthropological reports, literature, answers
by the learned Assistant Government Pleader and Scrutiny
Committee cannot be relied upon, for which reliance is placed on
Mana Adim Jamat Mandal Vs. State of Maharashtra (supra-HC) is
also misconceived for the reason that Mana Adim Jamat Mandal Vs. 20
WP 12 of 2022.odt
State of Maharashtra (supra-HC) while referring to Russell's "Castes
and Tribes of Central Provinces" merely recorded the arguments based
upon it. The judgment is not based upon it, as a perusal of the same
would indicate.
22.1. Kunhayammed Vs. State of Kerala (supra) 359 has also 5
been relied upon by Mr. S.P. Dharmadhikari, learned Senior Counsel,
speaks about the doctrine of merger. The judgment in Mana Adim
Jamat Mandal Vs. State of Maharashtra (supra-HC) having been
challenged in State of Maharashtra Vs. Mana Adim Jamat Mandal
(supra-SC) which then came to be decided, stands merged in State of 10
Maharashtra Vs. Mana Adim Jamat Mandal (supra-SC). The
contention is that paras 22 and 24 in Mana Adim Jamat Mandal Vs.
State of Maharashtra (supra-HC) ought not to have been relied upon
by the learned Division Bench in Gajanan Pandurang Shende Vs.
Head Master, Govt. Ashram School (supra), to hold otherwise, as 15
Mana Adim Jamat Mandal (supra-HC) merged into Mana Adim
Jamat Mandal (supra-SC). Though this may appear to be a logical
corollary based upon the doctrine of merger, however para 13 of
Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram School
indicates the perception of the learned Division Bench of 20
confirmation of this view, in view of Mana Adim Jamat Mandal
WP 12 of 2022.odt
(supra-SC). That is not the only reason why the learned Division
Bench in Gajanan Pandurang Shende Vs. Head Master, Govt. Ashram
School (supra) has held "Mana Scheduled Tribe" to be an umbrella,
encompassing within itself all the sub-tribes, parts or tribes having
the word "Mana" in it, with any prefix or suffix, considering which 5
nothing turns on it.
23. A.S. Nagendra Vs. State of Karnataka (supra), relied
upon by Mr. Bhandarkar, was a case in which there was a dispute
regarding interpretation of the Constitution (Scheduled Tribes) 10
Order, 1950 issued under Article 342 of the Constitution in which
"Maleru" was been described as a tribe or tribal community and a
claim was made that the tribe "Maaleru" and "Maleru" are the same
as according to the petitioners therein there was no difference
whatsoever between the two and that both were merely different 15
spellings describing the same community. Relying upon State of
Maharashtra Vs. Milind (supra) it was held that the appropriate
authority to decide this issue, namely, the interpretation of the
Presidential Order of 1950, would be the National Commission for
Scheduled Castes and Scheduled Tribes established under Article 338 20
WP 12 of 2022.odt
of the Constitution. A.S. Nagendra Vs. State of Karnataka (supra)
therefore is of no assistance to the arguments canvassed.
23.1. Aishwarya Madhukar Sonwane v. TheScheduled Tribe
caste Committee & ors. W.P. no.3837/2013, decided on 11/8/2022
relied upon by learned counsel Mrs. Rane was a case in which the 5
father of the petitioner was granted a validity certificate on
9/10/2006 and her brother was also granted a validity certificate on
30/7/2017. Relying upon what has been held in Apoorva Nichale Vs.
Divisional Caste Certificate Scrutiny Committee 2010 (6) Mh.L.J.401 ,
which holds that when during the course of enquiry a candidate 10
submits a caste validity certificate of a blood relative on the paternal
side granted earlier, the Committee shall grant such certificate
without calling for vigilance report and in case it is found that the
earlier caste certificate was tainted by fraud or is granted without
jurisdiction, may refuse to grant certificate of validity to the 15
applicant before it, on facts it was found that it was nobody's case
that the validity certificates of the father and brother of the
petitioner were obtained by fraud or misrepresentation and therefore
the petitioner was entitled to a certificate. Dashrath s/o Gajanan
Wakade Vs. The Collector, Nagpur and others (Writ Petition 20
No.2132/2013 decided on 25/08/2022) also is on facts where the
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entry in respect of the petitioners great Grandfather was found to
have been verified and correct. It in fact holds that the entry 'Mana',
in entry 18 of the Presidential (ST) Order was to be read as it is.
Harshu Mahadeo Randai Vs. The Vice Chairman/Member Secretary
Writ Petition No.8403/2022 decided on 04/01/2023 was a case in 5
which it was found that the Scrutiny Committee had sat in appeal
over the decision of the earlier Scrutiny Committee granting validity,
which was impermissible. Vasanta Mukunda Nagose Vs. Scheduled
Tribe Certificate Scrutiny Committee and others (Writ Petition
No.1813/2014 decided on 06/01/2023) was a case in which the 10
entry of the petitioners great Grandfather was recorded as 'Mana', in
1920- 23 ignoring which the claim was invalidated. Savita Gulabrao
Dongre Vs. The Vice Chairman/Member Secretary (Writ Petition
No.6903/2018 decided on 18/01/2023) was a case in which the
Scrutiny Committee was found not to have taken into consideration 15
pre-constitutional documents. Dhananjay s/o Manik Randhaye Vs.
The Scheduled Tribe Caste Certificate Scrutiny Committee, Gadchiroli
(Writ Petition No.1935/2022 decided on 13/06/2023) was a case of
invalidation on the ground of place of residence. Akshay s/o
Madhukar Chaudhari Vs. The Vice-Chairman/Member Secretary, 20
WP 12 of 2022.odt
Scheduled Tribe Caste Certificate Scrutiny Committee, Amravati (Writ
Petition No.4767/2018, decided on 02/08/2018) is also on facts
regarding the entry in the old documents. It would thus be apparent
that all these judgments are based on the facts availing therein and
are of no assistance for the proposition advanced in respect of the 5
questions referred.
23.2. Sandeep s/o Deorao Jiwtode Vs. Committee for
Scrutiny and Verification of Tribes Claims, Amravati and others (Writ
Petition No.878/2009, decided on 04/03/2009), relied upon by
learned counsel Mr. Nitin Meshram is on facts regarding the entries 10
in the documents filed in support of the Tribe claim; Omprakash
Deorao Dharne Vs. The Scheduled Tribe Caste Scrutiny Committee
(Writ Petition No.4636/2007, decided on 29/08/2009), and Omkar
s/o Ashokkumar Narnaware Vs. Committee for Scrutiny and
Verification of Tribe Claims and another (Writ Petition 15
No.3869/2008, decided on 21/01/2009), are on facts rejecting the
tribe claim of the petitioners therein; Priya Pramod Gajbe Vs. State
of Maharashtra through its Secretary, Tribal Development
Department, Mantralaya, Mumbai and others (Writ Petition
No.996/2018, decided on 22/12/2018) has been reversed by the 20
WP 12 of 2022.odt
Apex Court in Priya Pramod Gajbe Vs. State of Maharashtra and
Others 2023 SCC OnLine SC 909 ; Dudhram Baguji Hanwate Vs.
State of Maharashtra and others (Writ Petition No.3377/2019,
decided on 01/03/2021), was on facts where the invalidation of the
Tribe claim of the petitioner was upheld; Milind Sharad Katware and 5
others Vs. State of Maharashtsra and others 1985 SCC OnLine Bom
214 has been reversed in Chairman and Managing Director, Food
Corporation of India and others Vs. Jagdish Balaram Bahira (2017)
8 SCC 670 and Sayanna Vs. State of Maharashtra and others (2009)
10 SCC 268 was also on facts where the invalidation of the tribe 10
claim by the Scrutiny Committee on account of acceptance of a plea
of interpolation was set aside on the ground that the vigilence report
was not based on any credible evidence.
23.3. Ku. Ashwini Vilas Chavan Vs. State of Maharashtra
(Writ Petition No.28/2016 decided on 10/04/2017) and Abhijit 15
Suryakant Thakar and another Vs. State of Maharashtra through its
Secretary and others (Writ Petition No.4407/2019, decided on
05/01/2023 relied upon by learned counsel Mr. Narnaware were
cases in which the invalidation of the tribe claim of the petitioner by
the Scrutiny Committee was set aside on the ground that the 20
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petitioner's father's certificate of validity remained intact and no case
of fraud and misrepresentation was pointed out and thus are cases
on facts.
23.4. Anita Atmaram Gaikwad Vs. State of Maharashtra and
others (Special Leave Petition No.23081/2010, decided on 5
16/04/2013) relied upon by learned counsels Mr. Jambhule and
Mr. Khare, is also a case on facts in which the tribe claim of the
petitioner was validated on account of two pre-constitutional
documents and the claim of her brother and sister having been
23.5. Narayan Dinbaji Jambule and others Vs. The Scheduled
Tribe Certificate Scrutiny Committee, Gadchiroli and others (Public
Interest Litigation No.102/2013, decided on 15/04/2016) also holds
relying upon Palghat Jilla Thandan Samudhaya Samrakshna Samithi
Vs. State of Kerala (supra) that it is not permissible for any authority 15
including the High Court to embark on an enquiry as to whether any
caste/tribe included in the Presidential (ST) Order 1950 are entitled
to be treated as Scheduled Tribe or not. Relying upon Anand Vs.
Committee for Scrutiny and Verification of Tribe Claims (supra) it
has been held that pre-constitutional documents have more 20
probative value.
WP 12 of 2022.odt
23.6. Shubham Sharad Gadamade Vs. Scheduled Tribe
Certificate Scrutiny Committee 2017 (3) Mh.L.J. 780 , holds that the
vigilance enquiry was an internal affair for assistance of Scrutiny
Committee and the claimants cannot succeed in obtaining validity
merely by demonstrating that vigilance enquiry was faulty, for which 5
purpose the claimants must lead evidence independently to
substantiate their caste claim and therefore has not applicability
upon the question in issue.
23.7. Manisha Pundlik Dagmal Vs. Vice Chairman/Member
Secretary Scrutiny Committee Writ Petition No.5481/2018 decided 10
on 30/8/2018, considers Gajanan Pandurang Shende Vs. Head
Master, Govt. Ashram School and Gitesh Narendra Ghormare Vs.
Scheduled Tribe Certificate Scrutiny Committee (supra) and
undertakes an exercise of interpreting Mana in Entry-18, which is
not permissible in view of what has been held from B. 15
Basavalingappa Vs. D. Munichinnappa to State of Maharashtra Vs.
Keshao Vishwanath Sonone and therefore cannot be considered to
lay down the correct position of law.
23.8. Chandrashekhar Vinayak Chaudhari Vs. Scheduled
Tribe Certificate Scrutiny Committee (Writ Petition No.5828/2022 20
WP 12 of 2022.odt
decided on 18/4/2023) is also a judgment based upon the entries in
the documents and thus is a judgment on facts.
23.9. Though reliance has been placed upon Khilumal
Topandas Vs. Arvindas Tulsidas AIR 1939 Bom. 202; Udai Chand Vs.
M.T. Bakka AIR 1952 RAJ 52 by Mr. S.M. Ukey, Additional 5
Government Pleader for contending that the word 'community' has
different meanings in different context, in light of what has been
held we do not deem it necessary to go into what is meant by
community, as that is not the scope of the reference.
24. In view of the above we sum up our opinion as under :
Sr. Question Answer
No.
A Whether Gajanan Shende, In our considered opinion,
Gitesh Ghormare and Gajanan Pandurang Shende Vs.
Umesh Jambhore militate Head Master, Govt. Ashram
against the authoritative School and Gitesh Narendra
exposition of the Hon'ble Ghormare Vs. Scheduled Tribe
Supreme Court, to the Certificate Scrutiny Committee
extent certain groups or (supra) do not lay down the
communities like Mani, correct law and militate against
Mane, Mana-Kunbi etc. what has been held in B.
are held to be the Basavalingappa Vs. D.
Scheduled Tribe (Mana) Munichinnappa; Bhaiya Lal Vs.
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included as Entry 18 in Harikishan Singh; State of
the Presidential Order as Maharashtra Vs. Milind and so
amended ? also in E. V. Chinnaiah Vs. State
of A.P. (supra). Umesh
Ganeshrao Jambhore Vs. Vice-
Chairman/Member-Secretary,
Scheduled Tribe Caste
Certificate Scrutiny Committee
(supra) in as much as it relies
upon Gajanan Pandurang
Shende Vs. Head Master, Govt.
Ashram School and Gitesh
Narendra Ghormare Vs.
Scheduled Tribe Certificate
Scrutiny Committee (supra)
would also be infirm. The
answer to question no. A has
therefore to be in the
affirmative.
B Whether extensive The first part of Questions B is
reference and reliance on answered in the affirmative and
the publications, the the second part in the negative .
Government Resolution/s
and the answers elicited
from the Scrutiny
Committee during the
proceedings partake the
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character of a post
Presidential Order
Enquiry and if the answer
is in the affirmative,
whether such an enquiry
is permissible to interpret
or construe the entries in
the Presidential Order ?
C Whether the exercise of Is answered in the negative.
interpreting and While construing entry in the
construing documentary Presidential (ST) Order 1950,
material can transgress in no such material can be taken
the arena of inquisitorial into consideration.
enquiry post Presidential
Order ?
D The contours, scope, There is a clear cut distinction
ambit and limitations of between considering an
the enquiry assuming such individual claim by a person of
an enquiry is permissible belonging to a particular
of interpreting and scheduled tribe of which an
construing documentary entry exits in the Presidential
material which record a (ST) Order 1950 and in
particular caste or tribe ? considering the entry made in
the Presidential (ST) Order
1950. While the entry in the
Presidential (ST) Order 1950,
has to be read as it is, and
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nothing is permissible to be
considered while reading the
entry as indicated in our
answer to Question-A above; a
claim by an individual, of
falling within that entry can be
considered on the basis of the
documents and within the
parameters of the Maharashtra
Caste Verification Act, 2000 and
the Rules of 2003 as framed
thereunder in the light of what
has been stated in Kumari
Madhuri Patil Vs. Addl.
Commissioner, Tribal
Development; Anand Vs.
Committee for Scrutiny and
Verification of Tribe Claims;
Mah. Adiwasi Thakur Jamat
Swarakshan Samiti Vs. State of
Maharashtra and Priya
Pramod Gajbe Vs. State of
Maharashtra (supra) and not
otherwise.
WP 12 of 2022.odt
25. Before we part, we record our appreciation for all the
learned Senior Counsels and Counsels who have addressed us on the
above questions and their erudite addresses on the legal
propositions, have been a great assistance to us in rendering our
26. The matter may now be placed before the learned Division
Benches seized with the matters to decide them on merits in light of
the opinion rendered.
(ANIL S. KILOR, J.) (AVINASH G. GHAROTE, J.) (VINAY JOSHI, J.)
Wadkar/Deshpande
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 16/09/2023 14:02:47
