Writ Petition No.1361 of 1999

8th August, 2006

Petitioner Counsel: Shri. R. S. PARSODKAR
Respondent Counsel: Shri. P. B. PATIL,Shri. T. D. KHADE

Cases Cited:
State of Maharashtra Vs. Mana Adim Jamat Mandal, 2006(3) ALL MR 230 (S.C.)=2006(4) SCC 98 [Para 2,4,6,7]
1980(1) SCC 621 [Para 7]
2001(1) SCC 4 [Para 7]

JUDGMENT

D. D. SINHA, J. :- Heard Shri. Parsodkar, learned Counsel for the petitioner, Shri. Patil, learned Counsel for the respondent No.1, and Mrs. Khade, learned Assistant Government Pleader for the respondent Nos.2 to 5.

2. Shri. Parsodkar, learned Counsel for the petitioner, states that the petition is directed against the order dated 25-2-1999 passed by the Caste Scrutiny Committee invalidating the caste claim of the petitioner as belonging to 'Mana' (Scheduled Tribe) only on the ground that Mana community having affiliation with Gond Tribe will fall within the scope of relevant entry and not otherwise. It is contended that observations made by the Caste Scrutiny Committee cannot be sustained in law in view of decision of the Supreme Court in State of Maharashtra and others Vs. Mana Adim Jamat Mandal (2006(4) SCC 98 : [2006(3) ALL MR 230 (S.C.)]).

3. It is submitted by the learned Counsel for the petitioner that this is the second round of litigation initiated by the petitioner before this Court. On the earlier occasion, the caste claim of the petitioner was invalidated on the ground that he did not produce documents in respect of his close relations pertaining to period prior to 1950 showing that they belonged to 'Mana' (Scheduled Tribe). It is contended that this Court vide judgment and order dated 28-11-1997 passed in Writ Petition No.5680/1997 set aside the earlier order of the Caste Scrutiny Committee on the ground that the petitioner, in fact, had submitted documents before the Caste Scrutiny Committee, such as birth extract of the father dated 18-1-1931, birth extract of cousin uncle dated 24-7-1932 and his Primary School Leaving Certificate dated 23-1-1945 and caste mentioned in these documents was 'Mana'. It is submitted that matter was remanded back to the Caste Scrutiny Committee by this Court for reconsideration of the issue in the light of these documents and the Caste Scrutiny Committee was also asked to consider afresh the aspect of affinity and ethnic linkage with Mana (Scheduled Tribe). It is further submitted that the Caste Scrutiny Committee once again ignored these documents and invalidated the caste claim of the petitioner only on the ground that Mana community having affiliation with Gond Tribe will fall within the scope of relevant entry and since the petitioner failed to establish affinity with Gond (Scheduled Tribe), the Caste Scrutiny Committee invalidated the caste claim of the petitioner. It is contended that the impugned order of the Caste Scrutiny Committee, in the circumstances, cannot be sustained in law.

4. Shri. Patil, learned Counsel for the respondent No.1 Caste Scrutiny Committee, does not dispute factual aspect of the matter as well as the fact that law laid down by the Apex Court in the case of State of Maharashtra and others, [2006(3) ALL MR 230 (S.C.)] (cited supra) concludes the issue in question.

5. We have given our anxious thought to the contentions canvassed by the learned Counsel for the parties and perused the impugned order passed by the Caste Scrutiny Committee as well as above decision of this Court and the judgment of the Apex Court in the instant case, basic facts referred to hereinabove are not in dispute and, therefore, it is not necessary for us to reiterate the same. However, perusal of the impugned order shows that the Caste Scrutiny Committee has observed thus:

"It should be noted that the Mana Scheduled Tribe community has not been listed only single entry, but it has been clubbed along with numerous synonyms and sub-tribe included in Gond Tribe listed at serial No.18."

It is further observed by the Caste Scrutiny Committee that:

"Hence, the ratio of the Hon'ble Supreme Court's decision in the case of Dadaji alias Dina Vs. Sukhdeo Babu and others (1980 SCR 150), only the Mana community having affiliation with the Gond Tribe will fall within the scope of this entry is certainly applicable in the instant case with the equal force."

Similarly, it is observed by the Caste Scrutiny Committee that:

"Thus, the caste Mana, (a non-tribal group) merely having similarity of nomenclature, but no socio cultural affinity and ethnic linkage whatsoever with the Mana Scheduled Tribe Community does not in any way whatsoever fall within the scope of the entry at Sr. No.18."

6. The above referred observations of the Caste Scrutiny Committee need to be considered in the light of law laid down by the Apex Court in the State of Maharashtra and others, [2006(3) ALL MR 230 (S.C.)] (cited supra) particularly in reference to the observations made in para (30) of the judgment, which read thus:

"The common pattern found in most of the group entries is that there is a punctuation mark comma (,) between one entry 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 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 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."

In view of above referred law laid down by the Apex Court, it is evident that 'Mana' is a separate Scheduled Tribe, which has nothing to do with another Scheduled Tribe included in the same entry, i.e. Gond and, therefore, the Caste Scrutiny Committee is required to verify documentary evidence submitted by the petitioner as well as aspect of ethnic linkage and affinity with 'Mana' (Scheduled Tribe) alone for holding whether petitioner belongs to 'Mana' (Scheduled Tribe) or not and it is not relevant as to whether documentary evidence submitted by the petitioner is adequate or not to show affinity with 'Gond' (Scheduled Tribe).

7. It is well settled that neither the State Government nor Courts nor Tribunals nor any Authority can assume jurisdiction to hold enquiry 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 other although they are not expressly and specifically included as observed by the Apex Court in the case of State of Maharashtra and others, [2006(3) ALL MR 230 (S.C.)] (cited supra). Similarly, it is also equally well settled that the Court cannot alter or amend the said Presidential Orders since it has no power to do so within the meaning content and scope of Articles 341 and 342 of the Constitution. It is impermissible to hold any enquiry in relation to a particular caste or tribe to say whether it is included in the Presidential Orders when it is not so expressly included or excluded. In view of the observations of the Apex Court in para (20) of the decision in the case of State of Maharashtra and others, [2006(3) ALL MR (S.C.) 230] (cited supra), it is evident that decision in Dina II (1980(1) SCC 621) is overruled by the Constitution Bench in Milind's case (2001(1) SCC 4) and, therefore, the impugned order based on the said decision cannot be sustained in law.

8. In view of above referred well settled legal proposition, the Caste Scrutiny Committee is required to find out as to whether documentary evidence submitted by the petitioner is sufficient or insufficient to validate certificate issued by the Competent Authority to the petitioner declaring him to be belonging to 'Mana' (Scheduled Tribe) after applying affinity test.

9. The observations made by this Court in the judgment and order dated 28-11-1997 passed in Writ Petition No.5680/1997 demonstrate that the petitioner in fact submitted certain documents pertaining to his father and cousin uncle of years 1931 and 1932 respectively. Since these documents are old, they have more probative value than any other document placed on record before the Caste Scrutiny Committee. However, it appears that no reference is made to these documents in the impugned order and, therefore, it can safely be concluded that the Caste Scrutiny Committee without justification ignored these documents from consideration and invalidated the caste claim of the petitioner on the ground, which is unsustainable in law in view of law laid down by the Apex Court.

10. For the reasons stated hereinabove, the impugned order dated 25-12-1999 passed by the Caste Scrutiny Committee is quashed and set aside. The matter is remanded back to the Caste Scrutiny Committee for re-consideration of the caste claim of the petitioner in the light of observations made by this Court, according to law and procedure applicable in this regard within a period of three months from the date of receipt of this judgment.

11. The rule is made absolute in the above terms. No order us to costs.

Petition allowed.