V.R. Kingaonkar, J.
1. This petition is filed by a student, who was admitted in a Local College on seat reserved for Scheduled Tribe since she claimed to be member of 'Mana' community which is enlisted as Scheduled Tribe in the list published under Article 342 of the Constitution, feeling aggrieved due to invalidation of her caste claim.
2. The petitioner was admitted in Bhagwan Homeopathic Medical College and Indira Gandhi Memorial Hospital, Aurangabad, on seat meant for Scheduled Tribes category. She stated that she was member of 'Mana' community which is a Scheduled Tribe. The caste claim of the petitioner was referred to Scheduled Tribe Caste Certificate Scrutiny Committee, Aurangabad, for verification. The Scheduled Tribe Caste Certificate Scrutiny Committee-respondent No. 7 conducted enquiry into the matter. Though, the respondent No. 7-Committee came to the conclusion that the petitioner belongs to 'Mana' caste yet she is not member of a Scheduled Tribe. The Committee invalidated her caste claim mainly on the ground that the petitioner could not establish her being member of 'Gond Mana' community. The Committee held that the petitioner failed to establish affinity test of being Sub-division of 'Gond' community. The respondent No. 7-Committee held that Government Resolution dated 7-12-1994 would be applicable and the 'Mana' caste is regarded as Special Backward Class and not as 'Scheduled Tribe' in the State of Maharashtra. The Committee declared that the caste certificate of the petitioner is invalid and she does not belongs to 'Mana' Scheduled Tribe. Consequently, the caste certificate issued in her favour by Sub Divisional Magistrate, Aurangabad on 9th July, 1998 was cancelled and confiscated. The petitioner impugns this decision of the respondent No. 7-Scheduled Tribe Caste Certificate Scrutiny Committee.
3. It is common ground that the petitioner belongs to 'Mana' community. The only reason for which the caste certificate is invalidated is that she failed to prove affinity test and only 'Gond Mana' community is within the category of 'Scheduled Tribes', whereas 'Mana' community is regarded as Special Backward Class in the State of Maharashtra vide Government Resolution dated 13th June, 1995 (Exhibit-R-1). It is submitted, therefore, in the reply affidavit filed by respondent No. 2-Scheduled Tribe Caste Certificate Scrutiny Committee, Nasik that the caste claim of the petitioner is improper and she cannot claim reservation as member of the Scheduled Tribe.
4. We have considered rival contentions of the learned Counsel for the parties. We have carefully perused the impugned order and relevant documents filed on record.
5. The main question that falls for consideration is whether 'Mana', irrespective of affinity with 'Gond' Tribe, is a Scheduled Tribe within the meaning of Entry No. 18 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act (108 of 1976), Schedule, Part IX-Maharashtra.
6. There is no dispute about the fact that the old documentary evidence supports case of the petitioner that she is member of 'Mana' community. The District Magistrate, Chanda, issued caste certificate in favour of the petitioner's real uncle somewhere in 1960. The committee also found that school record of the close relatives of the petitioner discloses entry to show that they were members of 'Mana' community. The father of the petitioner was interviewed and necessary Vigilance report was also obtained during course of the enquiry. The Scrutiny Committee held that only 'Gond Mana' community is regarded as a Scheduled Tribe, whereas 'Mana' community was previously in the open category which is now categorised in the Special Backward Class as per the Government Resolution. The Scrutiny Committee held that 'Mana' Scheduled Tribe is synonymous of 'Gond'. In the present case, the petitioner is not concerned with 'Gond' community in any manner and did not pass through the affinity test is a fact.
7. Before we consider merits of the petitioner's case, let it be noted that the Presidential Order of 1950 was amended in 1960 and later on in 1976. The relevant amendments may be duly considered.
The President issued the Constitution (Scheduled Tribes) Order, 1950 in exercise of the powers conferred by Clause (1) of Article 342 of the Constitution. 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 XII of the Schedule to the Order shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule. The Order is followed by a Schedule constituting of twelve Parts. Part VII-A of the Schedule as amended by Act II of 1960 relating to Maharashtra by Item 5 specified that in (1) Melghat tehsil of Amravati district (2) Gadchiroli and Sironcha tehsils of the Chanda district (3) Kalapur, Wani and Yeotmal tehsils of the Yeotmal district, 32 tribes or tribal communities shall be deemed Scheduled Tribes. Entry 12 as originally set out in the Order promulgated by the President of India read : 'Gond (including Madia, ('Maria' and Mudia (Muria))'. By the Scheduled Castes and Scheduled Tribes Amendment) Act, 63 of 1956, Entry 12 was substituted by:
12. Gond, including Arakh or Arrakh, Agaria, Asur, Badi Maria or Bade Maria, Bhatola, Bhimma, Bhuta, Koliabhuta or Koilabhuti, Bhar, Bisonborn Maria, Chota Maria, Dandami Maria, Dhuru or Dhurwa,Dhoba, Dhulia, Dorla Gaiki, Gatta or Gatti, Gaita, Gond Gowari, Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, Kirwar or Khirwara, Kucha Maria, Kuchaki Maria, Madia (Maria), Mana, Mannower, Mohya or Mogia or Monghya, Mudia (Muria), Nagarchi, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thantia or Thotya, Wade Maria or Vade Maria.
Thereafter Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 was passed by the Parliament. By the above Act entire Schedule to the Order as it stood prior to the amendment was substituted by a new Schedule consisting of XVI Parts. Part IX of the new Schedule relates to the State of Maharashtra. Entry 18 of Part IX of the Schedule to the Order after amendment reads thus:
18. Gond, Rajgond, Arakh or Arrakh, Agaria, Asur, Badi Maria or Bada Maria, Bhatola, Bhimma, Bhuta, Koliabhuta, Koliabhuti, Bhar, bisonborn Maria, Chota Maria, Dandami Maria, Dhuru, Dhurwa, Dhoba, Dhullia, Dorla Gaiki, Gatta or Gatti, Gaita, Gond Gowari, Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghnya, Mudia, Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia Thotya, Wade Maria or Vade Maria.
8. Now, on perusal of the Entry 18 of Part IX of the Schedule to the order after amendment in 1976, it is amply clear that word 'including' which existed in Entry No. 12 of the earlier Presidential order was deleted. Therefore, the Entry No. 18 covers separate communities mentioned therein, and one of the community stated therein is 'Mana'. There is no pre-qualification required to prove that the 'Mana' community members were originally affiliated to Gond community. In other words, the amendment of the Presidential order leaves no manner of doubt that there was no need to prove affinity test by the petitioner to show that the community i.e. Mana had affinity with 'Gond' community. True it is that members of 'Gond' community in the Vidarbha Region, particularly from Chandrapur District, were originally from aboriginal class. Still, however, once separate communities are mentioned in Entry 18 of Part IX of the Schedule to the order after amendment in 1976 there is no power left with the State Government to modify the entry in any manner. The Supreme Court in Basavalingappa v. Munichinappa : [1965]1SCR316 clearly laid down that it is not open to make any modification in the Order by producing evidence to show 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 caste A. It is held that adducing of evidence in order to change the test of the entries in the Presidential order would be impermissible.
9. In Milind Sharad Katware and Ors. v. State of Maharashtra and Ors. 1987 Mh.L.J. 572 it is held:
It was permissible to enquire whether any sub-division of a Tribe, though not mentioned in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act is a part and parcel of the Tribe mentioned therein.' The judgment in 'Milind Katware' (supra) was upheld and affirmed in 'State of Maharashtra v. Milind Katware 2001 (1) Mh.LJ. 1.
10. The point involved in the present case is squarely covered by a Division Bench Judgment in Mana Adim Jamat Mandal v. State of Maharashtra and Ors. : 2004(2)BomCR295 . The Division Bench of this Court held that 'Manas' in Maharashtra are entitled to be treated as Scheduled Tribe throughout the State. The Government Resolution dated 15-6-1995 declaring 'Mana' community as Special Backward Class is struck down. The Division Bench held that the communities mentioned in Entry 18 are to be read as they have been mentioned without any modification, alteration or subtraction. Thus, when the entry of 'Mana' community is without use of any prefix as 'Gond', it is unwarranted to read such prefixing words. The respondent No. 7 committee clearly erred, therefore, in reading such prefixing word 'Gond' in the Entry 18 of the relevant Presidential order of 1976. The Committee ought to have declared the petitioner as a member of Scheduled Tribe being of 'Mana' community. It may be mentioned here that view taken in 'Mana Adim Jamat Mandal' (supra) is further approved by the Apex Court in State of Maharashtra and Ors. v. Mana Adim Jamat Mandal : AIR2006SC3446 . Needless to say, it is well settled that 'Mana' is not a sub-tribe of 'Gond' but a separate tribe by itself. The entire approach of the respondent No. 7-Committee was thus misdirected.
11. In the view we have taken as above, the finding of the respondent No. 7-Committee is unsustainable. The caste claim of the petitioner ought to have been validated. The impugned order is therefore liable to be quashed.
12. In the result, the writ petition is allowed. The impugned order dated 19-1-2000 passed by the Scheduled Tribe Certificate Scrutiny Committee, Nashik, invalidating tribe claim of the petitioner, is quashed and set aside. We hold and declare that the petitioner belongs to 'Mana' - Scheduled Tribe. We further direct the respondent No. 7 - Scheduled Tribe Caste Certificate Scrutiny Committee, Aurangabad, to issue caste validity certificate to the petitioner about she being 'Mana', Scheduled Tribe. The caste validity certificate shall be issued within a period of three months from today.
13. Rule made absolute in the above terms. There shall be no order as to costs.