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7. Mr. Deshpande, Advocate appearing on behalf of the petitioner submits that, in view of the judgment of the Division Bench of this Court in the case of Milind Sharad Katware and Ors. v. State of Maharashtra and Ors. reported in 1987 Mh.L.J. 572, the "Halba Kostis" in the Vidharbha region of the State of Maharashtra were being treated as Scheduled Tribe for a considerable passage of time. He submits that the judgment of the Division Bench of this Court was delivered after taking into consideration the judgments of the Apex Court in the case of Dina v. Narayan reported in 38 ELR 212 and Bhaiya Ram Munda v. Anirudh Patar reported in 1970(2) SCC 825. The learned Counsel submits that only on 28-11-2000 i.e. the date on which the judgment was delivered by the Apex Court in the case of State of Maharashtra v. Milind it was held that 'Halba Koshtis' are not entitled to the benefits available to the members belonging to the Scheduled Tribes. He submits that by this judgment the judgments of the Apex Court in the case of Dina and Bhaiya Ram Munda (cited supra) were held not to be a good law. Mr. Deshpande, Advocate submits that while holding that "Halba Koshtis" are not entitled for the benefits of the Scheduled Tribe, the Constitution Bench of the Apex Court, having regard to passage of time and circumstances and other related affairs, made it clear that admissions and appointments that have become final shall remain unaffected by the said judgment. He submits that another Bench of the Apex Court in the case of Sanjay Punekar v. State of Maharashtra 2002(1) Mh.L.J. (SC) 300 has also held that taking notice of passage of time the Apex Court in the case of State of Maharashtra v. Milind Katware (cited supra) has made its order prospective keeping unaffected appointments that have become final. He submits that not only this but in several other matters another Bench of the Apex Court has granted protection to the admissions and appointments which have become final in view of the prospective applicability of the judgment and order passed in the case of State of Maharashtra v. Milind (cited supra). The learned Counsel submits that not only this, but in the case of R. Vishwanatha Pillai v. State of Kerala and Ors. reported in (2004)2 SCC 105 itself the Apex Court has protected the admission of the son of R. Vishwanatha Pillai to Engineering Course in view of the law laid down in the case of State v. Milind Katware (cited supra). Mr. R.K. Deshpande, Advocate further submits that the judgment of the Apex Court in the case of Bank of India v. Avinash reported in 2005(4) Mh.L.J. (SC) 409 : 2005(7) SCALE 272 has not taken into consideration the judgment of the Apex Court in the case of Sanjay Punekar (cited supra). The learned Counsel, therefore, submitted that since the judgment in the case of Bank of India was rendered without noticing the judgment in Sanjay Punekar's case and since the strength of both the Benches was equal, the judgment in the case of Bank of India did not have binding force and that this Court, in view of the judgment in the case of State of Maharashtra v. Milind and in the case of Sanjay Punekar should protect the services of the petitioner since the appointment of the petitioner was in the year 1997 i.e. much prior to 28-11-2000.

9. The Division Bench of this Court in the case of Milind v. State of Maharashtra (cited supra) after placing reliance on the judgments of the Apex Court in the case of Dina v. Narayan (cited supra) and several other judgments of various High Courts held that it was permissible to enquire whether any subdivision of tribe though not mentioned, is part and parcel of such tribe mentioned therein. This Court further held that 'Halba Koshti' is a sub-division of main Tribe 'Halba/Halbi' as per entry No. 19 in the Act as applied to Maharashtra. It can further be seen that the Apex Court in the case of Dina (cited supra) applying the Affinity Test has held that 'Manas' who are Marathas and not Gonds are not Scheduled Tribes. It can further be seen that the Apex Court in the case of Bhaiya Ram Munda (cited supra) held that it was permissible to enquire as to whether Patars are Mundas or not. The Apex Court on consideration of the evidence took a view that Patars are sub-tribes of Mundas and that they are not different from Mundas. The Apex Court also rejected the contention that since Patars are not specifically mentioned in the List they cannot be included in general heading Munda. The Apex Court in the case of Bhaiya Ram Munda relied on the judgment of the Constitution Bench of the Apex Court in the case of B. Basavalingappa v. D. Munichinappa reported in AIR 1965 SC 1269. In the said case, since in the Presidential Order Bhovi caste was included and that there was no caste in the then Mysore State which was known as Bhovi, the Constitution Bench found that it was necessary to find out as to which caste was meant by the use of name Bhovi and for that purpose, recording of evidence was permissible. The Apex Court in the case of Bhaiya Ram Munda (cited supra) has also referred to the judgment of the Constitution Bench in the case of Bhaiyalal v. Harikishan Singh and Ors. . It can thus be seen that the Apex Court in the case of Bhaiya Ram Munda had sought support from the judgment of the Constitution Bench in the case of B. Basavalingappa (cited supra). The Division Bench of this Court, in turn, seeking support from the judgment of the Apex Court in the case of Bhaiya Ram Munda held that it was permissible to enquire whether any sub-division of a tribe though not mentioned in the Act is a part and parcel of the Tribe. This Court further held that Halba Koshti is a sub-division of main Tribe Halba/Halbi. As already stated hereinabove, the Division Bench had also sought support for the view that it had taken, from various judgments of this Court as well as other High Courts.

10. One more fact that needs to be noted is that the Division Bench of this Court in an earlier matter i.e. Abhay Parate v. State of Maharashtra reported in 1984 Mh.L.J. 289 had held that 'Halba Koshtis' were included in the entry of 'Halba' Tribe and had, therefore, quashed and set aside the order passed by the authority invalidating the Caste Certificate issued to the petitioner therein of belonging to Tribe 'Halba'.

11. The State of Maharashtra had filed a Special leave petition challenging the judgment of the Division Bench of this Court in the case of Abhay Parate v. State of Maharashtra (cited supra). Though the Apex Court refused to grant leave in the said matter, it held that the findings recorded by the High Court in the said case would be confined and applicable only to the petitioner before the High Court. However, the Apex Court had kept the larger question open and granted liberty to raise the said issue to the State of Maharashtra.

12. It can thus be seen that, in view of this position, the question as to whether 'Halba Koshtis' in the Vidarbha region in the State of Maharashtra are Scheduled Tribe was under a shadow of doubt for a considerable length of time. In the case of Abhay Parate (cited supra), this Court had taken a view that 'Halba Koshtis' are entitled to the benefits of Tribe 'Halba'. Though in a Special Leave Petition filed by the State against the judgment of this Court in the said case, leave was refused by the Apex Court, it had stated that the said judgment shall govern the petitioner only. The Apex Court had also kept the larger issue open. In the case of Milind v. State (cited supra), the Division Bench of this Court seeking support from the judgment of the Apex Court in the case of Bhaiya Ram Munda (cited supra), which had in turn sought support from the judgment of the Constitution Bench in the case of B. Basavalingappa (cited above) had reiterated its earlier view that "Halba Kosthi" is a sub-tribe of 'Halba/Halbi' as per entry No. 19".