Bombay High Court
Maroti S/O Vyankati Gaikwad And Others vs Dy. Director And Member Secretary, The ... on 15 September, 2023
Author: Avinash G. Gharote
Bench: Vinay Joshi, Avinash G. Gharote, Anil S. Kilor
2023:BHC-NAG:13853-DB
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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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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
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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-
WP 12 of 2022.odt 3 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 ?10
(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 WP 12 of 2022.odt 5 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 WP 12 of 2022.odt 6 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 WP 12 of 2022.odt 7
(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 WP 12 of 2022.odt 8 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 WP 12 of 2022.odt 9 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. WP 12 of 2022.odt 10 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.
WP 12 of 2022.odt 11 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 WP 12 of 2022.odt 12 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 WP 12 of 2022.odt 13 (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 WP 12 of 2022.odt 14 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 WP 12 of 2022.odt 15 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 WP 12 of 2022.odt 16 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.
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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 WP 12 of 2022.odt 17 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 WP 12 of 2022.odt 18 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 of Maharashtra and others (2009) 10 SCC 268. 10
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 WP 12 of 2022.odt 19 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.
WP 12 of 2022.odt 20 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 documents have to be evaluated. 10
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 WP 12 of 2022.odt 21 113 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 WP 12 of 2022.odt 22 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 WP 12 of 2022.odt 23 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. WP 12 of 2022.odt 24 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 WP 12 of 2022.odt 25 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 WP 12 of 2022.odt 26 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 Vishwanath Sonone (supra). 10
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 WP 12 of 2022.odt 27 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 WP 12 of 2022.odt 28 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 last 2 lines need to be clarified. 20 WP 12 of 2022.odt 29
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 WP 12 of 2022.odt 30 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. 5
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 WP 12 of 2022.odt 31 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 WP 12 of 2022.odt 32 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 Government of India dated 06/09/1950. 15 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 WP 12 of 2022.odt 33 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 WP 12 of 2022.odt 34 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 :
"12. Gond including - 10
Arakh or Arrakh Agaria Asur Badi Maria or Bada Maria Bhatola 15 Bhimma Bhuta, Koilabhuta, Koilabhuti Bhar Bisonhorn Maria Chota Maria 20 Dandami Maria Dhuru or Dhurwa Dhoba Dhulia Dorla 25 WP 12 of 2022.odt 35 Gaiki Gatta or Gitti Gaita Gond Gowari Hill Maria 5 Kandra Kalanga Khatola Koitar Koya 10 Khirwar or Khirwara Kucha Maria Kuchaki Maria Madia (Maria) Mana 15 Mannewar Moghya or Mogia or Manghya Mudia (Muria) Nagarchi Nagwanshi 20 Ojha Raj Sonjhari Jhareka Thatia or Thotya Wade Maria or Vade Maria." 25 13.5. In exercise of the powers as conferred by sec.41 of the States Reorg. Act, 1956, the President made the Scheduled Castes WP 12 of 2022.odt 36 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 WP 12 of 2022.odt 37 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 as follows : 15 "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, WP 12 of 2022.odt 38 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 WP 12 of 2022.odt 39 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 WP 12 of 2022.odt 40 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 :
(a) the tribes or 10
(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 WP 12 of 2022.odt 41 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 WP 12 of 2022.odt 42 '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 WP 12 of 2022.odt 43 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 WP 12 of 2022.odt 44 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 WP 12 of 2022.odt 45 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 WP 12 of 2022.odt 46 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 WP 12 of 2022.odt 47 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. 15 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 WP 12 of 2022.odt 48 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 WP 12 of 2022.odt 49 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 :
WP 12 of 2022.odt 50 "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:
WP 12 of 2022.odt 51 "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 accepted. 10
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 WP 12 of 2022.odt 52 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 authority under Article 341 (1)." 30 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 WP 12 of 2022.odt 53 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 WP 12 of 2022.odt 54 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 WP 12 of 2022.odt 55 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 WP 12 of 2022.odt 56 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 WP 12 of 2022.odt 57 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 WP 12 of 2022.odt 58 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 should, therefore, be entertained. 10 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) WP 12 of 2022.odt 59 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 WP 12 of 2022.odt 60 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 WP 12 of 2022.odt 61 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."5
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 WP 12 of 2022.odt 62 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 hereinafter. 15 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 WP 12 of 2022.odt 63 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 answers rendered were as under : 15 "(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 WP 12 of 2022.odt 64 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 (Official Report Vol.9) it was held thus : 5 "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 WP 12 of 2022.odt 65 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 WP 12 of 2022.odt 66 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 WP 12 of 2022.odt 67 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 68 (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 authority. 20 (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 WP 12 of 2022.odt 69 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 WP 12 of 2022.odt 70 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 WP 12 of 2022.odt 71 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 WP 12 of 2022.odt 72 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."10
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, WP 12 of 2022.odt 73 (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."
35It 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 WP 12 of 2022.odt 74 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."
WP 12 of 2022.odt 75 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 question were formulated : 5 "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?"
these questions were answered as follows : 30
"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 WP 12 of 2022.odt 76 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 WP 12 of 2022.odt 77 "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 WP 12 of 2022.odt 78 "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 79 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 WP 12 of 2022.odt 80 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 which it has been made. 5 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 Sonone (supra). 10 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 WP 12 of 2022.odt 81 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 into the evidence. 10
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 WP 12 of 2022.odt 82 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 WP 12 of 2022.odt 83 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 to be Scheduled Caste / Scheduled Tribe. 15 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 WP 12 of 2022.odt 84 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. 10
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 Scrutiny Committee (supra) say. 15
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 WP 12 of 2022.odt 85 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 follows : 15 "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."
WP 12 of 2022.odt 86 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 the Scheduled Tribes Order. 30 In respect of Gajanan Pandurang Shende Vs. Head Master, Govt.
Ashram School (supra), it has been clarified as under :
WP 12 of 2022.odt 87 "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 WP 12 of 2022.odt 88 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 WP 12 of 2022.odt 89 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 WP 12 of 2022.odt 90 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] WP 12 of 2022.odt 91 (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 Constitution. [Para 21] 5 (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 Constitution of India. [Para 43]" 15 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 WP 12 of 2022.odt 92 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 WP 12 of 2022.odt 93 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."5
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 WP 12 of 2022.odt 94 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 WP 12 of 2022.odt 95 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 96 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 97 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 E. V. Chinnaiah Vs. State of A.P. (supra). 10 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 98 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.
WP 12 of 2022.odt 99 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 100 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 101 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 102 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 103 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. Jagdish Balaram Bahira (supra)]. 15 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 104 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 105 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 Committee. 30
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 106 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 conclusive. 5
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.38. Thus, to conclude, we hold that : 25
(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 107 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 108 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 109 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 110 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 111 (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 112 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 113 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 114 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 115 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.
35There 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 116 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 WP 12 of 2022.odt 117 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, relied upon sums up the position as under : 5 "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 following terms: 10 (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 118 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] ."
10In 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 reference was necessary. 20
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 119 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 WP 12 of 2022.odt 120 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 121 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 122 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 123 (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 124 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 WP 12 of 2022.odt 125 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 126 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 127 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 WP 12 of 2022.odt 128 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 invalidated. 10 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 129 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 130 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. 10
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. WP 12 of 2022.odt 131 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 WP 12 of 2022.odt 132 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 WP 12 of 2022.odt 133 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 134
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 opinion on the questions referred to us. 5
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.
10 (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