ORAL JUDGMENT (Per : R.K. DESHPANDE, J.) :
1. The challenge in this petition is to the order dated 31-7-2013 passed by the Scheduled Tribe Certificate Scrutiny Committee, Amravati Division, Amravati, invalidating the claim of the petitioner for 'Halba, Scheduled Tribe', which is an entry at Serial No.19 in the Constitution (Scheduled Tribes) Order, 1950 and cancelling and confiscating the caste certificate dated 15-9-1989 issued by the Executive Magistrate, Umarkhed, Tahsil and District Yavatmal, certifying that the petitioner belongs to 'Halba, Scheduled Tribe'.
2. Before the said Committee, the petitioner produced total fifteen documents showing the caste of the petitioner and his paternal/blood relations as 'Halba'/'Halbi' consistently from 14-11-1923 to 6-7-1977, and such is also the finding recorded by
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the Committee. Though the Committee conducted the home enquiry through the Police Vigilance Cell to find out the genuineness of these entries, the report is that all the entries show the caste as 'Halba' or 'Halbi'. There is no dispute that there is not even a single document on the record of the Committee containing the caste entry as 'Koshti' or 'Halba-Koshti' or 'Halbi-Koshti' or
" 'Halba'/'Halbi' as a sub-caste of 'Koshti' " either in the name of the petitioner or any of his paternal/blood relations.
3. In the light of the aforesaid factual position, the Committee rejects the claim of the petitioner for 'Halba, Scheduled Tribe', which is an entry at Serial No.19 in the Constitution (Scheduled Tribes) Order, 1950, for the reasons, which are given below :
(A) The anthropological as well as historical research, including,
(i) N.S. Hajari Report, 1965,
(ii) Tribal Research Training Institute Report,
1970,
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(iii) 'People of India - Maharashtra' - By Anthropological Survey of India,
(iv) 'Bhartiya Sanskruti Kosh' - By Bhartiya Sanskruti Kosh Mandal,
(v) J.V. Ferreira Expert Committee Report, 1985,
(vi) Government Resolutions dated 24-4-1985 and 13-6-1995, and
(vii) The information collected by the Committee by contacting several old people belonging to 'Halba/Halbi, Scheduled Tribe',
make it very clear that apart from 'Halba/Halbi, Scheduled Tribe', there are also sub-caste 'Halba', sub-caste 'Halbi', and sub-caste 'Halba-Koshti of 'Koshti' caste, who are not entitled to benefits of recognized Scheduled Tribe.
(B) The caste 'Koshti' or 'Halba-Koshti' is included in the list of Special Backward Classes in the State of Maharashtra, and there is similarity in the nomenclature between the two groups, viz. (i) 'Halba'/'Halbi', and
(ii) sub-caste 'Halba' or 'Halbi' or 'Halba-Koshti' of
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caste 'Koshti'.
(C) The ancestral primitive area of residence of genuine 'Halba/Halbi, Scheduled Tribe' was confined to Lohara, Yavatmal, Godani, Talegaon Bari, Dhamani, Patsangra, Hatbapipri and Daheli. On the contrary, the people belonging to sub-caste 'Halba', sub-caste 'Halbi', and sub-caste 'Halba-Koshti' of caste 'Koshti' were earlier residing at Dhanki (Tq. Umarkhed), Phulsavangi, Dhanoda (Tq. Mahagaon), Sawar (Tq. Babhulgaon) and Digras (Tq. Digras).
(D) All the documents produced by the petitioner from 29-12-1923 to 6-4-1950 are from Umarkhed and Phulsavangi, which were the places of residence of the people belong to sub-caste of 'Koshti', and it was not a primitive belt of the genuine 'Halba' or 'Halbi'.
4. We proceed to deal with the reasons recorded by the Committee to reject the claim of the petitioner for 'Halba/Halbi,
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Scheduled Tribe' in the light of the undisputed factual position available on record.
5. The President of India issued the Constitution (Scheduled Tribes) Order, 1950 in exercise of the power conferred by clause (2) of Article 342 of the Constitution of India. By clause 2 of that Order, it was provided that the tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XXII of the Scheduled to the Order shall, in relation to the States to which those Parts respective relate, be deemed to be Scheduled Tribes so far as regards members thereof residents in the localities specified in relation to them respectively in those Parts of that Schedule.
6. Initially Entry No.13 in the relevant Part in the Schedule to the Order reads as 'Halba' or 'Halbi'. By the Scheduled Castes and Scheduled Tribes Order (Amendment) Act No.63 of 1956, the said entry was substituted by Entry No.13 in para 7 of Part VIII(A) of the Scheduled to the Order, which was as follows :
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"7. In (1) Melghat tahsil of the Amravati district.
(2) Gadchiroli and Sironcha tahsils of the Chanda district,
(3) Kelapur, Wani and Yeotmal tahsils of the Yeotmal district :--
13. Halba or Halbi." Act No.63 of 1956 introduced area restrictions and only those belonging to 'Halba' or 'Halbi' residing in the areas at Serial Nos.(1), (2) and (3) in Clause 7 above were recognized as Scheduled Tribes. As a result, two things were required to be established to get the status of recognized Scheduled Tribe - (a) that the person belongs to 'Halba' or 'Halbi', and (b) that his ordinary place of residence is, one or more areas at Serial Nos.(1),
(2) and (3), as shown in Clause 7 above. The status of recognized Scheduled Tribe was not extended to the tribals in Entry No.13, not residing in the areas at Serial Nos.(1), (2) and (3) in Clause 7.
7. Now we deal with the view taken by the Committee based upon the Entry No.13 above contained in Clause 7, that the
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petitioner is the resident of the area of Dhanki (Tq. Umarkhed), Phulsavangi, Dhanoda (Tq. Mahagaon), Sawar (Tq. Babhulgaon) and Digras (Tq. Digras), where people belonging to sub-caste of Koshti are residing and it was not a primitive belt of the genuine 'Halba' or 'Halbi'. In Clause 7, Item (3) of Act No.63 of 1956 amending the Scheduled Tribes Order, the areas of Kelapur, Wani and Yeotmal tahsils of Yeotmal district were included. The formation of these taluqas at that time is not disclosed. In our view, the finding that the people belonging to 'Koshti' Caste or its sub-caste only resided in the said areas and it was not a primitive belt of genuine 'Halba' or 'Halbi', is without any basis and hence perverse. Be that as it may, we proceed to test such findings on other grounds also.
8. The Act No.63 of 1956 was amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 (Act No.108 of 1976) passed by the Parliament and published in the Gazette on 29-9-1976. By this Act, the entire Schedule to the Order, as it stood prior to amendment, was substituted by a new Schedule, consisting of XVI Parts. Part IX of the new Schedule
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relates to the State of Maharashtra, and Entry No.19 of that Part reads as under :
"19. Halba, Halbi." The area restriction of Scheduled Tribes in the State of Maharashtra, contained in earlier Clause 7, for all the tribes including 'Halba', 'Halbi' was deleted. The members of the different tribes and communities in the State of Maharashtra included in Entry No.19 are treated and conferred with the status of recognized Scheduled Tribes, irrespective of their place of residence in the State. The net result of such deletion was that the two-fold requirements of establishing ordinary place of residence of 'Halba' or 'Halbi' in trial areas and their migration to non-tribal areas, was done away with and did not survive.
9. In the decision of the Apex Court in the case of Jaywant Dilip Pawar v. State of Maharashtra & Ors., delivered in Civil Appeal No.2336 of 2011 on 8-3-2017, the decision of the Scrutiny Committee that the relatives of the appellants in the said case were
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not the residents of the area mentioned in the Presidential Order, 1956, is set aside and it is held that what the appellants were required to establish was that they belong to the community mentioned in the Schedule of the Act No.108 of 1976.
10. It is thus clear that the petitioner in the present case, was not required to establish that either his forefathers were the ordinary residents of Lohara, Yeotmal, Godani, Talegaon Bari, Dhamani, Patsangra, Hatbapipri, and Daheli, which, according to the said Committee, were the places meant for the tribals in the Constitution (Scheduled Tribes) Order prevailing prior to 1976 or his forefathers migrated from the said area to the present place of residence. The Committee was, therefore, wrong in asking the petitioner to establish such facts and rejecting the claim on failure of it. In our view, the Committee erred in applying the test of ordinary place of residence of the petitioner or his forefathers, to reject the claim.
11. Now, we come to the finding that though the documents produced show caste 'Halba, Halbi', it is a sub-caste 'Halba, Halbi',
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which is a sub-caste 'Halba-Koshti; of 'Koshti' caste, based upon the anthropological as well as historical research in the form of certain reports, Government Resolutions and information, said to have been collected by the Committee from the old people of 'Halba/Halbi, Scheduled Tribe. We do not find any reference to actual contents of it in the order of the Committee. There is total failure to disclose the material which is completely hidden. The orders of quasi judicial authorities cannot be based upon undisclosed material. The finding is perverse. Be that as it may, we proceed to deal with it further. Before dealing with this finding, we shall see the law laid down by the Apex Court and this Court from time to time.
12. In the year 1967, a dispute arose in the decision of the Apex Court in the case of Dina v. Narayan Singh, reported in
38 ELR 212, as to whether 'Mana' community included under Entry No.12 of the Constitution (Scheduled Tribes) Order, 1950, as amended in the year 1956, is a sub-tribe of 'Gond' or a sub-tribe of 'Maratha' or an independent tribe. The appellant in the said decision contested the election as a candidate belonging to
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'Mana', Scheduled Tribe and not 'Gond Mana'. He did not claim and affinity with 'Gond' tribe. The High Court set aside the election holding that the appellant belonged to Kshatriya Badwaik Mana, which is a sub-caste of 'Maratha' and not 'Gond Mana' and, therefore, not eligible to contest the election. This was the subject-matter of challenge.
13. The question posed for consideraiton was, whether it was intended to declare under Entry 12 Manas who are not Gonds as members of Scheduled Tribes. The Apex Court confirmed the decision of the High Court. It holds that 'Mana' in Entry No.12 is one which is a sub-tribe of 'Gond' or has some affinity with Gonds. It holds that there is a community called 'Mana' who are 'Marathas' and not 'Gonds' - known as 'Kshatriya Mana' or 'Kunbi Mana'. 'Mana' community under Entry 12 is neither a sub-tribe of 'Maratha' nor an independent tribe. It further holds that the appellant, elected candidate, belonged to 'Mana', which is a sub-caste of 'Maratha'.
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14. How do we understand Dina's case, is to be considered now. In Dina's case, the evidence was permitted to be let in to show what is intrinsic and extrinsic in entry 'Mana' in the cluster of tribes led by tribe 'Gond' in Entry No.18 in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra. What the Apex Court held in the said decision is that - (i) 'Mana' is not an independent tribe, which is in the nature of declaration, (ii) 'Mana' is one which has affinity with 'Gond' as its sub-tribe called as 'Gond Mana', which is intrinsic, and (iii) the other communities, like 'Kshatriya Mana', 'Badwaik Mana', 'Maratha Mana', 'Kunbi Mana', etc., are extrinsic tribes, not forming the part and parcel of entry 'Mana'. Thus, by taking into consideration the evidence brought on record, the Apex Court classified and de-classified entry 'Mana' in the Scheduled Tribes Order.
15. Subsequently, the controversy cropped up before the Apex Court in the case of State of Maharashtra v. Milind and others, reported in 2001(1) Mh.L.J. 1, dealt with by the Constitution Bench of five Judges in respect of the claim of 'Halba, Halbi', which
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is an entry at Serial No.19 in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra. The candidate Milind was found to be belonging to 'Koshti', which was an independent and distinct caste having no relationship or identity with 'Halba/Halbi, Scheduled Tribe'. The High Court held that it was permissible to enquire whether any sub-division of a tribe was a part and parcel of the tribe mentioned therein and that 'Halba-Koshti' is a sub-division of main tribe 'Halba/Halbi' as per Entry No.19 in the Scheduled Tribe Order applicable to the State of Maharashtra.
16. The Apex Court, while reversing the aforesaid view of the High Court in Milind's case, found that Entry No.19 in the Scheduled Tribe Order is of 'Halba, Halbi' and whether a particular caste or tribe is Scheduled Caste or Scheduled Tribe, as the case may be, within the meaning of the entries contained in the Presidential Order issued under clause (1) of Articles 341 and 342, is to be determined looking to them as they are. It was held that clause (2) of the said Articles does not permit any one to seek modification of the said orders by leading evidence that the
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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 holds that it is only the Parliament that is competent to amend the Orders issued under Articles 341 and 342.
17. In para 21 of the decision in Milind's case, the Apex Court holds that the Division Benches in the cases of Bhaiya Ram Munda and Dina took a contrary view to say that evidence is admissible for the purpose of showing what an Entry in the Presidential Order was intended to be while stating that the Entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. The Court ultimately overrules the judgments in Bhaiya Ram Munda and Dina's cases and holds that no enquiry at all is permissible and no evidence can be let in, in the matter.
18. What we understand from the decision of the Apex Court in Milind's case is that the decision of the High Court holding that it was permissible to enquire whether 'Halba-Koshti' is a
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sub-division or synonym of main tribe 'Halba, Halbi' as per Entry No.19 in the Scheduled Tribes Order was wrong. The first thing which is required to be seen is the exact entry in the Scheduled Tribes Order, which, in the present case, is also 'Halba, Halbi'. The Entry No.19 'Halba, Halbi' has to be read as it is and no enquiry is permissible and no evidence can be let in to establish that 'Koshti' or 'Halba-Koshti' are the part or group within the tribe 'Halba, Halbi', though they are not specifically included in the Presidential Order. It was held that the earlier decisions of the Apex Court in Bhaiya Ram Munda and Dina's cases, relied upon by the High Court for its view that the evidence is admissible for the purpose of showing what entry in the Presidential Order was intended to be while stating that entry in the Presidential Order, were overruled.
19. In the decision of this Court in the case of Mana Adim Jamat Mandal v. State of Maharashtra and others, reported in 2003(3) Mh.L.J. 513, which is confirmed by the Apex Court in its decision in the case of State of Maharashtra and others v. Mana Adim Jamat Mandal, reported in (2006) 4 SCC 98, it was the argument advanced that there are non-tribal communities, like
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'Badwaik Mana', 'Khand Mana', 'Kshatriya Mana', 'Kunbi Mana', 'Maratha Mana', 'Gond Mana', 'Mani'/'Mane', etc., in Vidarbha region, and unless it is shown that they belong to 'Mana Scheduled Tribe' in Entry No.18, they are not entitled to the benefits of the Scheduled Tribes. It was also pointed out before this Court that 'Mana' community is also included in the lists of Other Backward Classes and Special Backward Classes and unless the affinity is established with 'Mana Scheduled Tribe', which is an entry at Serial No.18, the benefit meant for it cannot be availed.
20. The Division Bench of this Court in Mana Adim Jamat Mandal's case, cited supra, holds in para 24 as under :
"24. … 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 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,
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Manas throughout the State must be deemed to be Scheduled tribe by reason of provisions of the Scheduled Tribes Order. Once Manas throughout the State are entitled to be treated as a Scheduled Tribe by reason of the Scheduled Tribes Order as it now stands, it is not open to the State Government to say otherwise, as it has purported to do in various Government Resolutions. 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 Scheduled Tribes Order." (Emphasis supplied)
After confirming the aforesaid view, the Apex Court in the case of State of Maharashtra and others v. Mana Adim Jamat Mandal, cited supra, holds that 'Mana' is a separate Scheduled Tribe by itself included in Entry No.18 of the Constitution (Scheduled Tribes) Order and it is not a sub-tribe of 'Gond'. In view of the aforesaid two decisions in Mana Adim Jamat Mandal's case, it has to be held that once a particular caste or tribe or community is shown to be included in the Scheduled Castes/Scheduled Tribes Orders, it has to be seen as it is and it is
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not open for the State Government or for the Courts or for the Tribunals to embark upon an enquiry to determine whether a section of particular caste or tribe was excluded from the benefits of the Scheduled Castes/Scheduled Tribes Order.
21. What we see from the aforesaid two decisions is that in the cluster of tribes in Entry No.18 of the Scheduled Tribes Order, 'Mana' is one amongst it and the cluster is represented by tribe 'Gond' as the first tribe. The Courts hold that 'Mana' is an independent tribe and it cannot be clubbed together with lead entry 'Gond' to be called as 'Gond-Mana', as a sub-tribe of 'Gond'. As a result, there is no requirement of establishing affinity with Gonds by the persons claiming for 'Mana, Scheduled Tribe' or that 'Mana' in Entry No.18, is one which is the part and parcel of tribe 'Gond'. Not only that but the view taken in Dina's case that the other communities, like 'Kshatriya Mana', 'Badwaik Mana', 'Maratha Mana', 'Kunbi Mana', etc., are extrinsic tribes and not the part and parcel of 'Mana', is also overruled. It is held that no evidence can be let in to establish that there are communities, like 'Kshatriya Mana', 'Badwaik Mana', 'Maratha Mana', 'Kunbi Mana',
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etc., which are not forming part and parcel of entry 'Mana'. Entry 'Mana' has to be read as it is and nothing can be included or excluded from it on the basis of evidence led. Thus, the earlier decision of the Apex Court in Dina's case, which granted declaration that 'Mana' is not an independent tribe 'Mana' is one having affinity with 'Gond' called as 'Gond-Mana', which is intrinsic and other communities of 'Mana', like 'Kshatriya Mana', 'Badwaik Mana', 'Maratha Mana', 'Kunbi Mana', etc., are extrinsic and do not form part of 'Mana', was completely overruled.
22. In the decision of the Apex Court in the case of Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another v. State of Kerala and another, reported in (1994) 1 SCC 359, the claim for 'Thandan' caste, included in the Scheduled Castes Order, was denied on the ground that a section of Ezhavas/Thiyyas of Malabar area and of certain Taluqs of Trichur District were called 'Thandans' but they had nothing in common with the Scheduled Caste Thandans. The principal question, therefore, decided by the Apex Court was in respect of the validity of the decision of the State of Kerala not to treat the members of Thandan Community
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belonging to the erstwhile Malabar District, including Palghat District of the State of Kerala, as the members of the Scheduled Castes.
23. The Apex Court held that the Court could not assume jurisdiction and order an enquiry to determine whether the terms of the Presidential order included a particular community. It holds that the Scheduled Caste Order has to be applied as it is and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. The Court holds that it is not open to the State Government or indeed to the Court to embark upon an enquiry to determine whether a section of Ezhavas/Thiyyas called as Thandans in Malabar area of State was excluded from the benefit of the Scheduled Castes Order.
24. In the decision of the Apex Court in the case of E.V. Chinnaiah v. State of Andhra Pradesh & Ors., reported in 2004(9) SCALE 316, it was a case where the State of Andhra Pradesh appointed a Commission headed by Justice Ramachandra Raju (Retd.) to identify the groups amongst the Scheduled Castes
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found in the List prepared under Article 341 of the Constitution of India by the President, who had failed to secure the benefit of the reservations provided for Scheduled Castes in the State in admission to professional colleges and appointment to services in the State. Accepting the report, Andhra Pradesh Scheduled Castes (Rationalisation of Reservation) Act, 2000 was brought into force with effect from 2-5-2000, which divided 57 castes enumerated in the Presidential List into four groups based on inter se backwardness and fixed the quota in the reservation. This was the subject-matter of challenge.
25. Apart from the challenge to competency of the State 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 Apex Court has laid down the principles of law, which are summed up as under :
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"(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]
(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 14]
(C) That except for a limited purpose of making exclusion or inclusion in the List by an Act of Parliament there is no provision in the entire constitution either to sub-divide, sub-classify or sub-group these castes which are found in the Presidential List of Scheduled Castes.
[Para 14]
(D) Any executive action or legislative enactment which interferes, disturbs, re-arranges, 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]
(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]
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(F) The conglomeration of castes given in Presidential Order, 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]"
26. The decision in E.V. Chinnaiah's case goes further and holds that the classification or micro-classification or re-classification, division or sub-division, or arranging or re-arranging the entries in the Presidential Order by executive action or legislative enactment amounts to tinkering with the Presidential List, which violates Articles 14 and 341 of the Constitution of India. It holds that conglomeration of castes in the Presidential Order should be considered as representing a class of members which the Scheduled Castes Order has created and there can be no micro-classification within that class.
27. Keeping in view the aforesaid law laid down by the Apex Court, we come to the facts of the present case to consider
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the claim made for grant of validity certificate for 'Halba'/'Halbi', which is an entry at Serial No.19 in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra.
28. All the documents produced on record by the petitioner and those obtained by the Police Vigilance Cell show the caste of the petitioner and his forefathers as 'Halba'/'Halbi'. Some of these documents are of pre-constitutional period, having probative value. There is not even a single document on the record of the Scrutiny Committee showing the caste of the petitioner and his forefathers other than 'Halba' or 'Halbi'. The assessment of evidentiary value of the documents produced on record, clearly establishes the caste of the petitioner as 'Halba' or 'Halbi'. The Committee was, therefore, required to look into the entry of 'Halba, Halbi' in the Scheduled Tribes Order and the entries contained in the documents. In our view, the entries completely matched and there was no scope left for the Committee either to make an enquiry or let in any evidence or to apply affinity test to show that the caste of the petitioner and his forefathers was other than, 'Halba' or 'Halbi' or synonym of 'Halba, Halbi', an entry at Serial No.19 in the
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Constitution (Scheduled Tribes) Order.
29. We have noted that there is not even a single document produced on record of the Committee containing the caste entry of the petitioner and his forefathers as 'Koshti' or 'Halba-Koshti' or 'Halbi-Koshti' or 'Halba/Halbi' as sub-caste of Koshti. What the Committee is trying to do by relying upon the research papers, the Government Resolutions, the information collected in the form of evidence from the old people alleged to be belonging to 'Halba/Halbi, Scheduled Tribe', and the old Scheduled Tribes Order is to lead evidence to - (i) exclude a section of 'Halba, Halbi' on the ground that there are also sub-caste 'Halba', sub-caste 'Halbi' and sub-caste 'Halba-Koshti' of 'Koshti' caste, (ii) classify or re-classify or re-state or re-group certain communities of 'Halba' or 'Halbi', (iii) separate certain classes or section of 'Halba/Halbi' for grant or denial of benefits, and (iv) import the area restrictions, which were removed by the Act No.108 of 1976.
30. In para 12 of the decision of the Apex Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi's case, cited supra,
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it was a specific stand taken that "it has come to the notice of the Government that in the erstwhile Malabar area, particularly in Palghat Jilla, a section of Ezhavas/Thiyyas community was called Thandans". These Thandans are different from the recognized backward Scheduled Caste Thandans. Such a section of Thandans, which is alike to Ezhavas/Thiyyas community, is not entitled to the benefits meant for Scheduled Caste Thandans. It was also the stand taken that "there are Thandans belonging to Scheduled Caste as well as in certain families belonging to backward classes. Because of this position, it is all the more necessary to identify the Thandans belonging to Scheduled Caste, separating the other class of Thandans in the Malabar area".
31. It is thus clear from the aforesaid decision that the distinction was sought to be made between upper class Thandans, who were not entitled to the benefits, and backward class Thandans, who were entitled to the benefits. The Apex Court held that the Thandan community having been listed in the Scheduled Caste Order as it now stands, it is not open to the State Government or, indeed, to this Court to embark upon an enquiry to
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determine whether a section of Ezhavas/Thiyyas, which was called Thandan in the Malabar area of the State, was excluded from the benefits of the Scheduled Castes Order. In the present case also, the Committee has made a distinction of a similar nature on the basis of evidence on record. According to the Committee, 'Halba' or 'Halbi', residing in the parts of Lohara, Yeotmal, Godani, Talegaon Bari, Dhamani, Patsangra, Hatbapipri and Daheli, are considered to be of forward class and 'Halba' or 'Halbi, residing in Dhanki (Tq. Umarkhed), Phulsawangi, Dhanoda (Tq. Mahagaon), Sawar (Tq. Babhulgaon) and Digras (Tq. Digras), are considered to be of backward class. The upper caste 'Halba' or 'Halbi', according to the Committee, are not entitled to the benefits of Scheduled Tribe, whereas backward class of 'Halba' or 'Halbi' are entitled to. In our view, once 'Halba, Halbi' community having been listed in the Scheduled Tribes Order, as it stands, it is not open for the Committee to determine on enquiry that upper caste 'Halba' or 'Halbi' are excluded from the benefits of the Scheduled Tribes Order.
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32. In the present case, the Committee, by relying upon the research papers, the Government Resolutions and the information collected, has held that there are also sub-case Halba, sub-caste Halbi and sub-caste Halba-Koshti of Koshti caste for denying the benefits of the Scheduled Tribes Order. The Committee is trying to create the classification or sub-divide the entry 'Halba, Halbi' into two categories - (1) 'Halba, Halbi', who belong to sub-caste 'Halba', sub-caste 'Halbi' and sub-caste 'Halba-Koshti' of 'Koshti' caste, residing in the particular area of Yavatmal district (to be treated as ingenuine), who are not entitled to the benefits of the Scheduled Tribes Order, and (2) those 'Halba' (said to be genuine), residing in other parts of district Yeotmal entitled to benefits. This, in our opinion, not only tinkers with the Presidential List, but amounts to creating artificial classification in the homogeneous group of 'Halba', 'Halbi', not based upon any valid criteria having nexus to the object sought to be achieved. It thus violates Articles 14 and 342(2) of the Constitution of India, as has been held in E.V. Chinnaiah's case, decided by the Apex Court.
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33. In the decision of Mana Admit Jamat Mandal's case, delivered by the Division Bench of this Court and confirmed by the Apex Court, it was a specific plea raised that 'Mana' in Entry No.18 in the Constitution (Scheduled Tribes) Order, 1950, which has no affinity with 'Gond' or which is not a sub-tribe of 'Gond', is included in the list of Special Backward Classes in the State of Maharashtra and such community includes 'Badwaik Mana', 'Kshatriya Mana', 'Maratha Mana', 'Kunbi Mana', 'Mani'/'Mane', etc. This Court has held that once 'Mana' community is found to be listed in the Scheduled Tribes Order, 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 benefits of the Scheduled Tribes Order, and the Government Resolutions dated 24-4-1985, 19-6-1985 and 15-6-1995, creating such classification for denial of the benefits of the Scheduled Tribes Order, were quashed and set aside. The decision of this Court is confirmed by the Apex Court.
34. Keeping in view the law laid down in Mana Adim Jamat Mandal's case, cited supra, we hold that in the present case, the
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Committee could not have given any weightage to the fact that 'Koshti' or 'Halba-Koshti' are included in the list of Special Backward Class prepared by the State Government for three reasons - (1) the Scheduled Tribes Order including Entry No.19 of 'Halba, Halbi' was prepared in the year 1950, whereas the list of Special Backward Class was prepared in the year 1995,
(2) the State List of Special Backward Class does not include 'Halba' or 'Halbi', and (3) even if it is so, the entries in the State List of Special Backward Class cannot override or interpret the entry in the Constitution (Scheduled Tribes) Order. The view taken by the Committee cannot be sustained.
35. In view above, none of the reasons stated by the Committee for rejecting the claim of the petitioner for 'Halba, Scheduled Tribe', which is an entry at Serial No.19 in the Constitution (Scheduled Tribes) Order, 1950, can be sustained in the eyes of law. The order of the Committee is, therefore, liable to be quashed and set aside with a direction to the Committee to issue a caste validity certificate in the name of the petitioner for 'Halba, Scheduled Tribe'.
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36. In the result, this petition is allowed, and the following order is passed :
O R D E R
(1) The order dated 31-7-2013 passed by the Scheduled Tribe Certificate Scrutiny Committee, Amravati Division, Amravati, invalidating the caste claim of the petitioner for 'Halba/Halbi, Scheduled Tribe', is hereby quashed and set aside.
(2) The caste certificate dated 15-9-1989 issued by the Executive Magistrate, Umarkhed, Tahsil and District Yavatmal, certifying that the petitioner belongs to 'Halba/Halbi, Scheduled Tribe', which is an entry at Serial No.19 in the Constitution (Scheduled Tribes) Order, 1950, is held to be valid.
(3) The said Committee is accordingly directed to issue a caste validity certificate in the name of the
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petitioner within a period of one month from the date of production of the copy of this judgment before it.
(4) The respondent Nos.1 and 3 are directed to release all the documents, concessions and benefits, if they are withheld, to the petitioner as a candidate belonging to Scheduled Tribe category. If any amount is recovered from the petitioner as a candidate belonging to open category, the same also be refunded to him. This exercise be carried out within a period of two weeks from the date of production of the copy of this judgment before them, without even waiting for the caste validity certificate.
37. Rule is made absolute in the aforesaid terms. No order as to costs.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar