At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE V.K. BARDE & THE HONOURABLE MR. JUSTICE A.S. BAGGA
For the Petitioner: S.B. Talekar, Advocate. For the Respondent: V.B. Ghatge, A.G.P., R2 R.G. Deo, S.O., R5 M.N. Nawandar, holding for K.G. Nawandar, Sr.C., Advocates.
V.K. BARDE, J.
The petitioner had passed the 12th standard examination in the year 1986 and he wanted to take admission for First Year B.V.Sc. & A.H. Course, at Veterinary College, Parbhani, However, he had scored less marks and, therefore, he joined Deogiri Science College, at Aurangabad, in First Year B.Sc. Course. The petitioner has contended that even then he desired to join the Veterinary College.
2. The petitioner has contended that he is Dhangar by caste. He has further contended that Dhangad is one of the oldest original tribes in India. Dhangar is known by different names in different parts of the country. Thus, Dhangar is called Dhangad. The Government of India, implicitly, assumes the fact of difference in spelling of Dhangar and Dhangad. As is evident, the two spellings of the word have been used in the Report of Census of India 1961, Bibliography on the Scheduled Castes and Scheduled Tribes, Part II (IV-A), A to K Series, published by the Registrar-General of Ministry of Home Affairs, New Delhi. He has, therefore, contended that Dhangar and Dhangad are one and the same. Dhangar and Dhangad are used interchangeably and, therefore, the caste/tribes Dhangar or Dhangad convey the same meaning.
3. He has further contended that the formerly the State of Maharashtra comprised of erstwhile State of Bombay, and some parts of erstwhile State of Hyderabad, erstwhile Central Provinces and Berar, erstwhile Madhya Pradesh and erstwhile Mysore State. The original Scheduled Castes and Scheduled Tribes Order, 1950, issued by the President, (hereinafter referred to as "the 1950 Order") did not include Dhangar/Dhangad in the list of Scheduled Tribes in any of the aforesaid States, except in the State of Madhya Pradesh. In the State of Madhya Pradesh, Oraon was included as one of the Scheduled Tribes at Sr.No. 26 in the list. However, the Report of the Backward Classes Commission, under the Chairmanship of Kaka Kalekar, had suggested the revision of Backward Classes in the year 1955; and had suggested in revision that Dhanka and Dhangad be added with Oreon, as Dhanka and Dhangad were sub-tribes of Oraon, in the list of Madhya Pradesh. These recommendations were examined in consultation with the State Governments, the Commissioner for Scheduled Castes and Scheduled Tribes and the Deputy Registrar General. As a result, the Parliament amended and promulgated the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956 (hereinafter referred to as "the 1956 Act"). The entry regarding Oraon stood amended by including Dhanka and Dhangad, in Part IV for the State of Madhya Pradesh of the second Scheduled of the 1956 Act.
4. He has further contended that the Districts of Yeotmal, Amravati, Chandrapur and Gadchiroli were part and parcel of erstwhile State of Madhya Pradesh. Further, as a result of reorganisation of States, these districts were merged into the State of Maharashtra in the year 1960. The list of backward classes in the Maharashtra State was published under Part VIII-A of Eighth Schedule of the Bombay Reorganisation Act, 1960. In the said list, Oraon, including Dhanka and Dhangad, were shown at Sr. No. 27 in Melghat Tehsil of Amravati District; Gadchiroli and Sironcha Tehsils of Chandrapur District; and Yelapur, Yeotmal and Wani Tehsils of Yeotmal District. The area restrictions imposed on the Scheduled Tribes came to be removed under the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 (hereinafter referred to as "the 1976 Act"). Entry No. 36 of Part IX, Maharashtra, of Second Schedule to the 1976 Act provided Oraon Dhangad as Scheduled Tribe in the State of Maharashtra.
5. The petitioner has contended that in the Reports of Census of 1961 and 1971, there is no mention of population and Dhangad caste/tribe. No person of Dhangad was found in Census of 1961 and 1971 in the State of Maharashtra. At the same time, population of Dhangar is shown in the Census of 1961 and also of 1971. It is further contended by the petitioner that not a single certificate is issued by the Executive Magistrate anywhere in Maharashtra State of the effect that a person belongs to Dhangad community-Scheduled Tribe.
6. He has, therefore, contended that Dhangad-Scheduled Tribe-either does not exist in the State of Maharashtra; or, if at all it exists, it is known under different name, i.e., Dhangar. The very fact that the population of Dhangad is not shown in the State of Maharashtra in the 1961 and 1971 Reports of Census shows that Dhangad did not exist in Maharashtra and, therefore, no certificate was issued indicating that a person belonged to Dhangad-Scheduled Tribe in the State of Maharashtra.
7. The petitioner has also contended that Dhangar and Dhangad is one and the same. There is plethora of literature-sociological, anthropological and ethnical of scientific studies and researches carried out by social scientists, anthropologists and ethnologists showing that Dhangar and Dhangad are one and the same. The petitioner has thereafter given the various references from various books in support of this contention, which will be referred to at appropriate places hereinafter.
8. The petitioner has also contended that in West Bengal, Dhangar and Dhangad are included in the list of Scheduled Castes, although Dhangar
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as not included in the original list under the 1950 Order. The Backward Classes Commission, 1955, had recommended that Dhangar be included in the list of Scheduled Castes and the same suggestion was accepted with respect to West Bengal. The Parliament also accepted the suggestion of the Commission; and accordingly, Dhangad was included in the list of Scheduled Castes under the 1956 Act. It is contended by the petitioner that the Commission had suggested to include Dhangar, whereas the Parliament, instead of including Dhangar, including Dhangad as one of the Scheduled Castes in West Bengal by the 1956 Act. The Parliament also used the words Dhangar and Dhangad interchangeably for obvious reasons that the alphabet 'r' is pronounced as 'd' in Hindi speaking areas. There is no difference among Dhangar and Dhangad-Oraon and Oreon. 9. Unfortunately, the Government of Maharashtra has made artificial difference between Dhangar and Dhangad. The Government of Maharashtra has recognised Dhangar as one of the backward classes in Maharashtra in 1967. Dhangad was recognised as one of the Scheduled Tribes as early as in 1960. There was no need to distinguish Dhangar and treat it separately. As Dhangar and Dhangad are one and the same, it was not necessary to include Dhangar in the list of Other Backward Classes (O.B.Cs.) The distinction made by the Government of Maharashtra between Dhangar and Dhangad was further perpetuated by the Director of Social Welfare and his successor Scrutiny Committee in refusing to treat Dhangar as Dhangad. Although the Parliament has recognised Dhangad as Scheduled Tribe in Maharashtra, the Government of Maharashtra has refused to treat Dhangar as Scheduled Tribe, by making an artificial distinction between Dhangar and Dhangad. 10. The petitioner has further contended that the Government of Maharashtra had stated on the floor of the legislature that Dhangad Scheduled Tribe is found in Gadchiroli. The Director of Social Welfare has issued a circular to all the Executive Magistrates in Maharashtra in 1981 saying that Dhangad Tribe is found only in Gadchiroli. The father of the petitioner, therefore, had asked the Executive Magistrate, Gadchiroli, to give the details of Scheduled Tribe, namely Dhangad, in Gadchiroli district and the Executive Magistrate, Gadchiroli, replied that there was no population of Dhangad in Gadchiroli. The petitioner has also contended that, as there is no community by name Dhangad in the State of Maharashtra, the community Dhangar must be treated as community Dhangad; otherwise, that particular Entry in the 1956 and 1976 Acts will be meaningless. 11. The petitioner has also stated that various attempts were made by the President of Maharashtra Dhangar Samajonnati Mandal for including Dhangar in the list of Scheduled Tribes, as being synonym of Dhangad. It is also contended that the Assistant Director has principally accepted that community Dhangar and community Dhangad might be the same, but the certificate would be issued only in the name of community specified in the 1950 Order or the 1976 Act. The Assistant Director assured that proposal to include Dhangar community in the list of Scheduled Tribes in Maharashtra would be considered at the time of revision of the list of Scheduled Castes and Scheduled Tribes, in accordance with the criteria laid down. 12. The petitioner has contended that he had applied for caste certificate as Dhangad to the Taluka Executive Magistrate, Degloor. The Taluka Executive Magistrate, Degloor, instead of issuing the caste certificate to the petitioner as belonging to Dhangar, which is recognised as Backward Class in the State of Maharashtra, and, therefore, the petitioner has filed this writ petition challenging the validity, legality and correctness of the same certificate. 13. The petitioner has referred to various rulings of the Supreme Court and other High Courts in support of his contentions. The petitioner has prayed that it be declared that Dhangar and Dhangad are one and the same. The phrase "Oraon Dhangad" used in Entry No. 36 of IX Part of the 1976 Act includes Dhangar in Maharashtra. The Taluka Executive Magistrate, Degloor, be directed to issue certificate to the petitioner as belonging to Dhangad, i.e. Scheduled Tribe in Maharashtra; and the Dean and Principal of College of Veterinary Science, be directed to consider the application of the petitioner for the course of First Year B.Sc. and A.H. from the quota reserved for Scheduled Tribes. 14. The petitioner has submitted along with the petition extracts from various Book and Reports. 15. On behalf of respondent Nos. 1 to 3, affidavit in reply is filed of Dr. Gare, the then Director, Tribal Research and Training Institute, Maharashtra State, Pune. He has stated that he holds Master's Degree in Sociology and he is awarded Ph.D. Degree for his thesis on Tribals in Urban Settings. He has written various books connected with tribals in Maharashtra and has also published research papers in various journals of repute. Since 1976, he is working as Director. 16. The respondent have contended that they do not dispute that the petitioner is Dhangar by caste, but it is denied that Dhangar is called as Dhangad. It is specifically denied that Dhangar and Dhangad are one and the same and these terms are used interchangeably. It is further contended that the petitioner has wrongly interpreted the description on Page 294 in the Bibliography of Scheduled Castes and Scheduled Tribes, which is published as a part of Report of Census of India, 1961. The reference on this page is that to Dhangad Tribe and not to Dhangar Caste. It is further contended that if the last alphabet in a word in Indian language is 'D', then it is pronounced and written in English as 'R'. This has so happened in the case of Aligad-Aligarh; Beed-Bhir, and so on. It is, therefore, contended that Dhangad Tribe might be at places pronounced as Dhangar; but Dhangar Caste in Maharashtra is altogether different than Dhangad Tribe. In Maharashtra, Dhangad is Tribe; whereas Dhangar is Caste, included in the list of O.B.Cs. at Sr. No. 32. 17. The respondents have admitted that Dhangad was not shown in the list of Scheduled Tribes in the 1950 Order so far as the Bombay State was concerned; but was shown so with respect to the State of Madhya Pradesh; and it is also admitted that by the 1956 Act, Oraon including Dhanka and Dhangad, was shown as Scheduled Tribe at Entry No. 27 in respect of Bombay State; and in the year 1956, after the reorganisation of the Bombay State, at Sr. No. 20 for the specified areas, Oraon, including Dhanka and Dhangad, was mentioned as Scheduled Tribe. 18. However, the respondents have denied that no population of Dhangad was recorded in Census of 1961 and 1917. In the year 1961, one person was recorded as belonging to Dhangad Tribe in the Census Report. It is denied that, in the State of Maharashtra, Dhangad exists under the name Dhangar. It is further contended that even if it is assumed that no certificate is issued by any Magistrate in Maharashtra to a person as belonging to Dhangad tribe, that itself shows that Dhangad is a separate Tribe from Dhangar Caste. 19. It is denied that, if there are no Dhangads in the State of Maharashtra, then the Entry in Part IX of Schedule 2 of the 1976 Act would be rendered meaningless. Even if there is only one person belonging to the Dhangad Tribe, it is the Constitutional duty bestowed on the State to protect his rights. It is further contended that there is no scientific research or study carried out by any properly trained person, social scientists or anthropologists to show that Dhangar Caste in Maharashtra and Dhangad Tribe in Maharashtra are one and the same. The respondents thereafter have stated in the affidavit how the various references to books and other documents made by the petitioner are not correct and relevant. It is further contended that Dhangad are very rarely found and, therefore, the Executive Magistrate, Gadchiroli, might be correct in stating that there is no Dhangad population in his area. 20. It is also contended that the petitioner's statements that the Assistant Director, in his letter dated 16-12-1986, has principally accepted that Dhangar and Dhangad might be same are not correct. The Assistant Director has not expressed any such opinion, but has merely stated that the question will have to be decided at the time of revision of Presidential Order of 1950 by suitable amendment and, so long as the Dhangars are not included in the 1950 Order, they cannot get the benefits. It is also contended that the Executive Magistrate, Degloor, has rightly issued certificate to the petitioner showing him as Dhangar, as Backward Class; and not as Dhangad, a Scheduled Tribe. 21. Dr. Gare has further stated in his affidavit that caste and tribe are two distinct concepts. The caste is a division of Hindu religion. The word caste is not of Indian origin, but it is derived from Portuguese word caste signifying race, mould or quality. The main idea denoted by the word caste is a community of persons following a common occupation and observing marriage and eating restrictions. Thus, the caste mainly is a subdivision of a society and has acquired the relative lower or higher status in the society as a whole. Whereas, the tribe is a self-contained, complete social group. The tribe is not lower or higher in the status in relation to another tribe. So also, in a particular tribe, the members can have any vocation. Tribes mainly are the residents of thick forests or hilly tracts in the country and some of them speak their own dialects. A tribe lives a secluded life away from the civilised world and remains isolated from the other communities within a geographical region, in the inaccessible parts lying in the forest and hills having very undeveloped means of transportation routes. The members of the tribe are generally not included in the traditional Hindu caste hierarchy and most of the tribes profess primitive religion. Therefore, it was thought fit to give a distinct protection to Scheduled Castes and Scheduled Tribes in the Constitution and they are not treated in one group. Dhangar is a caste found in Maharashtra and also in some parts of Karnataka. The word derives its origin from "Dhenu", meaning cattle, and Dhangars now in Maharashtra mainly shepherds. During the Maratha Regime, some of the Dhangars were servants in Maratha Government and one of them, Malherrao Holkar, founded the Indore State in Madhya Pradesh. He has further contended that Dhangad is a sub-tribe of Oraon, mainly found in Bihar, Chota Nagpur and parts of State of Madhya Pradesh. To protect even the smallest number of Dhangads migrated in the State of Maharashtra, Oraon Dhangads were included in the 1956 Act for the Bombay State. In the year 1961, only one person was found of this tribe in Maharashtra, but in 1971, no person of this tribe was reported to be living in Maharashtra. 22. It is further contended that to obtain benefits of reservations under the constitution, many persons or communities are trying to get themselves included in the list of Scheduled Tribes. In case of Dhangars, some claim that they are Dhangads and some claim that they are Dhangars. Dhanwar is a distinct Scheduled Tribe and different from Dhangad. Similarly, Dhangar is a caste and has no similarity, in culture, anthropology or otherwise, with Dhangad. The similarity lies only in nomenclature. The affiant has also given various references to the books and publications in support of his contentions. He has also described the life style of Dhangad to indicate how they are different from Dhangar and, therefore, it is prayed that this writ petition be dismissed. 23. Respondent No. 4 has not filed any affidavit in reply.24. From these respective stands of the petitioner and the respondents, it appears that the petitioner wants to contend that: (1) the community Dhangar is nothing but Scheduled Tribe Dhangad;(2) the 1950 order, the 1956 Act and the 1976 Act, wherever Dhangad is mentioned, it should be considered including Dhangar. Thus, the petitioner wants that the Court should interpret the term "Dhangad" in such a way as to include the term "Dhangar" in it. The other stand taken by the petitioner is that there is no tribe by name Dhangad in the State of Maharashtra. However, the tribe Dhangad is mentioned in the 1950 order, the 1956 Act and the 1976 Act for the State of Maharashtra; and to give proper meaning to that, the community Dhangar should be considered as Tribe Dhangad; otherwise, the very declaration would be meaningless. The third stand of the petitioner is that there is no difference between Dhangar and Dhangad. They are one and the same; and only because of method of pronunciation, they are being shown different. 25. The question thus put before the Court is to be considered from two aspects:(1) How far the Court has jurisdiction to interpret the words used in the 1950 Order, the 1956 Act and the 1976 Act to include Dhangar in place of Dhangad or to say that Dhangar is Dhangad? (2) Whether the petitioner has proved that Dhangar is Dhangad? 26. The learned Counsel for the petitioner has placed strong reliance on the ruling of Division Bench of this Court in the matter of (Milind Sharad Katware and others v. State of Maharashtra and others)1, reported in 1986(1) Bom.C.R. 403 : 1987 Mh.L.J. 572. In the said matter, while considering the powers of the Court, with respect of the Presidential Orders issued under Articles 341 and 342 of the Constitution of India, it is observed (para 37, page 592 of the Report):"It is permissible to enquire whether any subdivision of a Tribe - though not mentioned in the Act - is a part and parcel of the Tribe mentioned therein."The Division Bench has also concurred with the observations made by Their Lordships of the Orissa High Court in the matter of (K. Adikanada Patra v. Gandua)2, reported in A.I.R. 1983 Orissa 89. Their Lordships of the Orissa High Court have laid down five principles as follows (Para 7, page 576 of Mh.L.J.):(1) Generally speaking it would not be open to any person to lead evidence to establish that a particular caste/tribe is a part of caste/tribe notified in the Constitution (Scheduled Caste/Scheduled Tribes) Order.(2) It is clear from Article 341/342 that in order to determine whether or not a particular caste/tribe is Scheduled Caste/Scheduled Tribe within the meaning of Article 341/342 one has to look at the public notification issued by the President in that behalf.(3) The name by which a tribe or sub-tribe/caste or sub-caste is known is not decisive. Even if the tribe/caste of a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribe/sub-caste.(4) Para 2 of the Order provides to the extent material that the tribes, or parts of, or groups within the tribes specified in the Schedule to the Order shall also be deemed to be Scheduled Tribes.(5) An admission made by a party expressly or by implication that he is not a member of the Scheduled Tribes/Scheduled Castes is evidence against him, but the evidence is not conclusive."27. The learned Counsel for the petitioner, therefore, has contended that, here are the circumstances existing where the Court will have to consider whether Dhangar is included in Dhangad in the Presidential Order of 1950; and the Court also can consider as to whether Dhangar and Dhangad are the same.28. However, in our opinion, the learned Counsel for the petitioner is giving very wide interpretation to the observations made by the learned Judges of Division Bench of this Court, as well as that by the learned Judges of Division Bench of Orissa High Court, in the cases cited supra. The facts appearing in these two cases were quite different than the facts in the present case. In such circumstances, it is absolutely necessary to see what is the law laid down by the Supreme Court in this respect.29. Both the above quoted rulings are making reference to the two Supreme Court rulings; (B. Basavalingappa v. D. Munichinnappa and others)3, reported in A.I.R. 1965 S.C. 1269; and (Bhaiya Lal v. Harikishan Singh and others)4, reported in A.I.R. 1965 S.C. 1557. In the case of B. Basavalingappa, the Constitutional Bench of the Supreme Court has observed in paragraph 6 as follows (at page 1371 of the Report)."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 caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order; (See Aray (mala), Dakkal (Dakkalwar) etc.). Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B (in the example quoted above) is part of caste A notified in the Order. . . ."30. In the case of B. Basavalingappa the facts were peculiar. Those are mentioned in nutshell as follows (Para 7, page 1271 of the Report):".......The difficulty in the present case arises from the fact (which was not disputed before High Court) that in the Mysore State as it was before the re-organisation of 1956 there was no caste known as Bhovi at all. The order refers to a scheduled caste known as Bhovi in the Mysore State as it was before 1956 and, therefore, it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. 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 meant by Bhovi is to take evidence in that behalf. . . ."So, in these peculiar circumstances of that case, the evidence was allowed to find out which caste was meant by Bhovi in the Presidential Order.31. In the present case, it is true that in Bombay State, Oraon Dhangad was not the tribe existing in the year 1950. But, that tribal community was inexistence in the Central Provinces. In 1956 and 1960, when reorganisations of the States took place, certain parts of the Central Provinces and State of Madhya Pradesh were included in the State of Maharashtra. Those parts, which were adjacent to Chota Nagpur area of the State of Madhya Pradesh, where Oraon Dhangad Tribe was in existence, are merged in the State of Maharashtra; and naturally, not because of migration of the community, but because of the change in the borders of the States, the persons of Oraon Dhangad tribe happened to come in the State of Maharashtra; and to meet this exigency, in the 1956 Act and the 1976 Act, Oraon Dhangad are shown as Scheduled Tribe in the State of Maharashtra. The Oraon Dhangad Tribe was clearly identified in the State of Madhya Pradesh and Central Provinces, and that came in the State of Maharashtra because of reorganisation of the States. There is no reason to find out which community is included in the Tribe Oraon Dhangad. That Tribe is well-identified and, therefore, the Court need not go into the question as to whether some other community, which is in Maharashtra, can be accepted as Oraon-Dhangad community, because that was not in the erstwhile State of Bombay in 1950. The problem in B. Basavalingappa's case was quite different and, therefore, it was answered accordingly by the Supreme Court.32. The principle laid down in B. Basavalingappa's case is followed by the Apex Court in Bhaiya Lal's case, which is again a decision of the Constitutional Bench; and it is observed (para 8, page 1559 of the Report):". . .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, one has to look at the public notification issued by the President in that behalf. ..."Therefore, the Apex Court had held that it was not open to the Court to find out whether Dhor caste was sub-caste of Chamar, because Dhor was not included in the Presidential Notification as sub-caste of Chamar.33. In the matter of (Nityanand Sharma and another v. State of Bihar and others)5, reported in 1996(3) S.C.C. 576, the question before the Apex Court was whether Lohar is a Scheduled tribe included in Lohara/Lohra, Scheduled Tribe, in the State of Bihar. There also, it was being contended that Lohars could be considered by the Court as synonyms of Loharas/Lohras; and then, relying upon the ruling in B.Basavalingappa's case, the Apex Court has again reiterated (Para 13, page 561 of the Report):". . . Notification issued under Article 341(1), after an elaborate enquiry in consultation with the Governor and reaching the conclusion specifying particular caste, race or tribe with reference to different areas in the State, is conclusive...."So, the powers of the Court are very much limited to take up the enquiry whether a particular community can be included in the Entry with respect to particular Scheduled Caste or Scheduled Tribe by referring to oral evidence or other evidence and those limits are very well specified by the Supreme Court in B. Basavalingappa's case. In view of this ruling, it is not necessary to refer to other rulings cited by the respective Counsel on both sides.34. So, in the present matter, the Court cannot take up the enquiry as to whether Dhangars are Dhangads, or whether Dhangar is synonym of Dhangad or, whether Dhangad includes Dhangar, or so far as the State of Maharashtra is concerned, Dhangad and Dhangar are one and the same.35. In the beginning, when Oraon Dhangad community was declared as Scheduled Tribe for the Central Provinces by Presidential Order of 1950, full enquiry was made with respect to that community and by the Acts of 1956 and 1976, because of the reorganisation of the States, that community is again shown as Scheduled Tribe so far as the State of Maharashtra is concerned; under the Act of 1956, for specified areas, but because of the 1976 Act, the area restrictions are removed. Dhangar cannot be considered as synonym of Dhangad; and the Court cannot give such declaration when Dhangad is considered under the Constitution as a specific Scheduled Tribe.36. The ratio laid down in the case of Milind Katware (supra) by the Division Bench of this Court indicates that it is permissible to enquire whether a subdivision of a particular tribe, though not mentioned in the Act, is a part and parcel of the tribe mentioned therein. The petitioner here is not contending that Dhangar is subdivisions of tribe Dhangad. In the said case, the question was whether Halba Koshti community is subdivision of Halba or Halbi tribe, notified under the Presidential Order; and to resolve that question, it was held that the Court can enquire whether a particular community is subdivision of that tribe. But, the Court cannot enquire whether altogether different community can be considered as the community notified as Scheduled Tribe under Presidential Order and/or under the 1956 or 1976 Act. So, the said ruling of the Division Bench of this Court is not applicable to the facts of the present case.37. We would also like to point out that this aspect of the case was considered by the other Division Bench of this Court, with respect to the contention that Dhangar can be treated as Dhangad. In Writ Petitions Nos. 2086 of 1997, with 2087 of 1997 and 2095 of 1997, (Govind Nilkanthrao Kukade, etc., etc. v. State of Maharashtra and others etc. etc.)6, decided on 27th June 1997 (unreported), this very prayer was turned down. The said decision was challenged in the Supreme Court by filing petition for Special Leave to Appeal (Civil) No. 19533 of 1997 (Shivaji Vithalrao Kokane v. The State of Maharashtra)7, but the same was dismissed by the Supreme Court on 23-10-1997. So, in a way, the point is no more res integra.38. In view of these circumstances, the petition has to be dismissed.39. However, the learned Counsel for the petitioner has elaborately argued with reference to various books and publications to show that Dhangar includes Dhangad, or, Dhangar is synonym of Dhangad. So, we would like to refer to that aspect of the case.40. The learned Counsel for the petitioner has contended that Dhangad community is not at all in existence in the State of Maharashtra; and for that, he is making reference to the 1971 Census Report. No doubt, in 1971 Census Report, no person from Dhangad community is noted as seen in the State of Maharashtra. However, in the 1961 Census Report, one person was noted as belonging to Dhangad community. It is already pointed out that Oraon Dhangad is shown as Scheduled Tribe in State of Maharashtra because of merger of certain portion from the Central Provinces in the State. Those persons must be in that part of the State of Maharashtra which is adjacent to the border of the Central Provinces and migration from State of Maharashtra to now formed State of Madhya Pradesh, after 1961, cannot be ruled out. Furthermore, only because in one Census, a person from that community is not noted as seen, it cannot be said that that community is totally wiped out from the State of Maharashtra.41. It also cannot be said that, as now, no person from tribe Dhangad is available in the State of Maharashtra, some other community be substituted in place of that community, only because that other community is having some similarity in the name.42. The provisions of Articles 341 and 342 of the Constitution do not give such a liberty. A community has to be identified, by following the procedure laid down under the Constitution, as Scheduled Caste or Scheduled Tribe; and then has to be notified accordingly. A substitution, because one community is no more in existence, of the other community in that place is not at all permissible. The argument advanced by the learned Counsel for the petitioner in this respect is altogether without any basis.43. We also do not find any substance in the argument of the learned Counsel for the petitioner that Dhangar and Dhangad are used interchangeably, or, they are synonyms. Dhangad is a tribe very well identified in the beginning for the Central Provinces, while Dhangar is a caste very well identified so far as the State of Maharashtra is concerned. In State of Maharashtra, Dhangar and Dhangad are never used as interchangeable. Dhangar is a community well-known in Maharashtra State from historical times having specific occupation and having its place in the caste system in the State of Maharashtra.44. In this respect, we would like to make a reference to the Book, "Bharatiya Sanskrutik Kosh", edited by Pandit Mahadeoshastri Joshi. In Volume IV of the said Book, at page 543, the learned Author has described "Dhangar" as a caste. It is worth noting that in the same book, "Dhanka" is specifically described as a Scheduled Tribe. For "Dhanka", the word "Adiwasi Jamat" (Scheduled Tribe) is uses; while for "Dhangar", the word "Jat" (Caste) is used. The etymology of word "Dhangar" is also given and the 22 sub-castes of Dhangar caste are also mentioned. So, in this book, which is considered as one of the authentic books, Dhangar is described as a caste and not as a tribe.45. Unfortunately, in the Book, "Marathi Vishwa Kosh", Volume No. 7, published by the Maharashtra Rajya Sahitya Sanskruti Mandal, there is no reference to "Dhangar", but, in the Book, "Sulabh Vishwa Kosh", Volume No. 3, published by Date and Karve, again, Dhangar is described as a caste in Maharashtra.46. So, Dhangar is well identified caste in the State of Maharashtra.47. The learned Counsel for the respondents has pointed that in the Book, "Hindu Tribes and Castes", by Rev. M.A. Sherring, in Volume II, while describing the tribes and castes of the Central Provinces and Berar, in section VIII, at page 131, there is reference to Dhangar Tribes and it is mentioned:"Dhangars are apparently a branch of the kols of Chota Nagpore. There is a large colony of them in Sambalpur, and a few in the district of Bilaspur, where they are mostly in service. The Dhangars of Berar are sheep farmers, and manufacturers of blankets. They seem to be different people from the Dhangars of Northern India."48. So, even if there are communities known as Dhangars in Maharashtra as well as in Northern India or, other parts of India, Dhangar community from Maharashtra is different from the Dhangar community found in the Central Provinces. The contention of the petitioner that Dhangar and Dhangad are one and the same, therefore, cannot be accepted.49. In the Book, "The Tribes and Castes of the Central Provinces of India", by R.V. Russell, to which reference is made by the learned Counsel for the petitioner, in Volume No. III, at page 3, while describing "Gaderia", or, "Gadri", it is observed, "Dhangar" is probably, in reality, a corruption of "Dhangar", the name of the Maratha Shepherd Caste. So, here again, while showing the similarity of Gadaria or Gadri and Dhangar, it is mentioned that Dhangar is Maratha Shepherd caste; and not a tribe.50. The learned Counsel for the respondents has also referred to the Book. "The Tribes and Castes of Bombay", by R.E. Enthoven. In its Volume No. I, at page 311, the description of Dhangar community is given. It is observed :"The social position of Dhangars is below that of Kunbis, but in point of language, house, dress and food, they differ little from Kunbis. Dhangars rank themselves with Marathas and do not ear from the Ghisadis, Buruds, Parits and Jingars, whom they consider below them. Dhangars thus claim a fairly high status in Hindu society, but there can be little doubt that they are a pre-Aryan race ...."So, here again, Dhangar is described as a caste in Hindu society and not a tribe, independent of Hindu. So, so far as the State of Maharashtra is concerned, Dhangar, who follow mainly the profession of Shepherds, are belonging to caste in social status in Hindus.51. In the Book, "Descriptive Ethnology of Bengal", by Edward Tuite Dalton; and "The Tribes and Castes of the Central Provinces of India", by R.V. Russell, while describes "Oraon", it is mentioned that Oraon are commonly known in the Central Provinces as Dhangar or Dhangar-Oreon; but it is further observed in Book by Russell at page 300. "In Chota Nagpur, the word Dhangar means a farm servant engaged according to a special customary contract, and it has come to be applied to the Oraons, who are commonly employed in this capacity." It is further observed on the same page, "Of the other names by which they are known to outsiders Dhangar means a farm servant, Kuda a digger, and kisan a cultivator."52. So, from these two Books, it will be clear that Oraon is the community mainly working as labourer, while Dhangar in Maharashtra area Shepherd, or, they keep the herds of cattle. Oraon is a tribe in Chota Nagpur are and some parts of Central Provinces, adjacent to Chota Nagpur area; and it has nothing in common with Dhangar in Maharashtra.53. It is worth nothing that in the Book, "Races of Northern India", by W. Crooke on page 76 , it is observed :"It is only in the plateau of Chota Nagpur that the Dravidians have resisted Hindu influence of this kind. As examples of such tribes we may take the Oraons, Kols and Santals..."54. So, these observations indicate that Oraons are not Hindus, but they are forming an independent tribe, while Dhangars are Hindus. There is ample reference in the Book, "Bharatiya Sanskrutik" Kosh, referred to above, which indicates that Dhangars in Maharashtra are worshipping Khandoba and Biroba, the Hindu Gods. In this connection, it may be observed that the affidavit filed by Dr. Gare in this writ petition is not merely of a Government Officer. As indicated above, Dr. Gare has educational expertise and vast experience in respect of Scheduled Tribes in the State, as also he has in-depth knowledge of their origins. Therefore, the affidavit filed by Dr. Gare will have to be given more weight.55. So, by no stretch of imagination, it can be said that Dhangar in Maharashtra are same as Oraon Dhangad in Central Provinces, part of which is merged in the State of Maharashtra after reorganisation of States.56. The petitioner is trying to take advantage only of one circumstances that there is some similarity in the name of these communities, Dhangar and Dhangad; but that is a very thin thread for the petitioner to claim that Dhangars are Dhangads, a Scheduled Tribe described in the 1950 Order, or, the 1956 Act, or, the 1976 Act. On facts also, the petitioner has failed to prove that Dhangar means Dhangad, or, Dhangar is synonym of Dhangad, or, as there is no community Dhangad found in the State of Maharashtra, Dhangar should be considered as Dhangad for the proper interpretation of the 1950 Order, or, the 1956 Act, or, the 1976 Act.57. One more circumstance has to be noted that, no, Dhangar community, which was notified as Backward Class in the State of Maharashtra, is now notified as De-notified/Nomadic Tribe, as per the Notification dated 25th May, 1990 for the State of Maharashtra; and it is included accordingly at Sr.No. 29 in the list of the V.J.N.T. Not only that, a special reservation is also created for newly added Nomadic Tribes, within the reservation provided for the Nomadic Tribes, as per the Notification of the State of Maharashtra, for Dhangar and its sub-castes. This circumstance also indicates that the State of Maharashtra has not taken any steps to include Dhangar in the list of Scheduled Tribes published as per the 1976 Act.58. If the contention of the petitioner is accepted that Dhangar is Scheduled Tribe, which is described as Dhangad in the 1950 Order, then, not only the persons of Scheduled Tribe of Dhangad Tribe will suffer; but, all the persons from other Scheduled Tribes will also suffer to a great extent. The population of Dhangar is sizeable in the State of Maharashtra. No doubt, they are somewhat backward as compared to other castes in the State of Maharashtra; but they are far better than the Scheduled Tribe communities, economically, socially and educationally. For centuries, they are considering themselves a caste in Hindu community equivalent to Marathas and Kunbis. If such a community is allowed to be notified as Scheduled Tribe, then the very purpose of giving constitutional protection to real Scheduled Tribes people will be lost. The benefits of reservations, which are provided for the Scheduled Tribes, will be usurped by Dhangar community, if they are styled as Scheduled Tribe, because of their superiority over the real Scheduled Tribes. So, from this point of view also, the relief, which is being sought by the petitioner, cannot be granted, especially when there is nothing to indicate that Dhangars are Scheduled Tribe, or, that, Dhangar and Dhangad are the same. 59. Hence, the writ petition is dismissed. Rule discharged. No order as to costs. CIVIL APPLICATION NO. 1254 OF 1988 60. This Civil Application is to be heard along with Writ Petition No. 1071 of 1987. However, the learned Counsel for the petitioner has not advanced any argument with respect to the contentions raised in this application. The copy of the Circular, dated 8-9-1982, issued by the Chairman, Tribal Development and Research Institute, Pune, and the Government Resolution, dated 24th April, 1985, are also not brought on record. Furthermore, in view of the decision in Writ Petition No. 1071 of 1987, no purpose will be served. 61. Hence, this Civil Application disposed of. WRIT PETITION NO. 2961 OF 1996 62. The two petitioners in this petition had obtained the certificates that they belong to Dhangad, Scheduled Tribe community. Their certificates were referred for verification to the Scheduled Tribes Caste Certificate Scrutiny committee (hereinafter referred to as "the Scrutiny Committee"). The Scrutiny Committee, by its order dated 27-3-1996, rejected both the certificates, holding that the petitioners do not belong to Dhangad, Scheduled Tribe. This rejection is challenged by the petitioners, on the grounds that (1) Dhangar is Dhangad in the State of Maharashtra; and (2) the Scrutiny Committee has wrongly rejected the evidence, which was produced by the petitioners, on the ground that all the certificates were of the period subsequent to the 1950 order and, therefore, they had no probative value. Therefore, the petitioners contend that they ought to have been considered as Dhangad, Scheduled Tribe. 63. In view of the above discussion, it is very clear that the petitioners cannot claim the certificate of Scheduled Tribe, on the contention that Dhangar is Dhangad. That contention, therefore, has to be turned down. 64. So far as the rejection of the claim of the petitioners on the ground that all the certificates, which the petitioners had produced, such as, school leaving certificate, certificate from the Head Master of the school, certificate from the Gram Sevek of the Gram Panchayat, etc., are of the period after the 1950 order is concerned, the Scrutiny Committee has rightly rejected all those certificates. From the pleadings of the petitioners, it does appear that they belong to Dhangar caste and not Dhangad, Scheduled Tribe. However, somehow, they have obtained these certificates, indicating that they belong to Dhangad, Scheduled Tribe. If the Scrutiny Committee had not been alert enough, the petitioners would have passed off for generations as persons belonging to Scheduled Tribe. The petitioners do not belong to Scheduled Tribe and they are not entitled to a certificate indicating them to be belonging to Dhangad, Scheduled Tribe. 65. The petitioners had moved for interim relief that they be considered for admission for medical courses, on the basis of their certificates indicating that they belong to Dhangad, Scheduled Tribe; and interim relief was granted as per the order dated 2nd July, 1986 passed by this Court. Each of the petitioner has furnished undertaking that he shall not claim any equitable relief, merely on the basis of provisional admission granted under the orders of the Court. So, if the petitioners are given admission to any medical course, or, to any other course, on the basis of the certificate indicating the petitioners as belonging to Dhangad, Scheduled Tribe, their admissions stand cancelled. 66. Further, it clearly appears that by misleading the authorities, the petitioners have obtained the certificates that they belong to Dhangad Scheduled Tribe community. They have tried to play fraud on the constitution and, therefore, they are not at all entitled to any equitable relief. 67. In view of the observations of the Apex Court in the case of (Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and others)8, reported in 1995(2) Bom.C.R. (S.C.)690 : 1994(6) S.C.C. 241, and various others rulings of the Apex Court, the petitioners are not at all entitled to any equitable relief to protect them for continuation of their education for any medical course, or, any other course, on the basis of certificates, obtained by them as belonging to Dhangad, Scheduled Tribe. 68. The petitioners are, therefore, directed to surrender their certificates before the concerned issuing authority and, on receipt of such original certificates, it should be duly cancelled by the said issuing authority. However, the petitioners are entitled to obtain any other appropriate caste certificate permissible under the law. 69. Writ petition thus stands dismissed. Rule discharged. However, in the circumstances of the case, there shall be no order as to costs. WRIT PETITION NO. 4268 OF 1996 70. The petitioner has contended that he belongs to Dhangad community, which is Scheduled Tribe. He had applied for caste certificate on that basis. But the authorities have rejected his request to issue him the caste certificate indicating that he belongs to Dhangad, Scheduled Tribe. He is seeking admission for medical courses. As he is not having the certificate as belonging to Scheduled Tribe, his application in that category is not going to be considered and, therefore, he is seeking the declaration that he belongs to Dhangad, Scheduled Tribe; and for admission in M.B.B.S. course from that category. 71. From the record, which the petitioner has produced before the authorities, it is clear that he was shown as belonging to Hindu Dhangar caste and, therefore, the authorities have rejected his request to issue the certificate that he belongs to Dhangad, Scheduled Tribe. 72. Considering the observations made above, the rejection is quite right. The petitioner being Dhangar, he cannot be treated Dhangad, Scheduled Tribe. Hence, his petition is liable to be dismissed on that count. 73. If the petitioner has obtained admission to medical course, or, any other course, on the basis of interim relief granted by this Court, treating him as Dhangad, Scheduled Tribe, then his admission stands cancelled. This is in view of the observations of the Apex Court in Maduri Patil's case (cited supra). 74. Hence, this writ petition stands dismissed. Rule discharged. However, there will be no order as to costs. WRIT PETITION NO. 5067 OF 1996 75. The petitioner has contended that he belongs to Dhangad, Scheduled Tribe community. He had applied for caste certificate accordingly. However, the authorities have issued him the caste certificate indicating that he is Dhangar, Nomadic Tribe. He is seeking admission for M.B.B.S. course, but as he is not treated as Scheduled Tribe, he is not able to get admission in that category. So, he is seeking a declaration that Dhangar be declared as Dhangad and the caste certificate be issued to him indicating that he belongs to Dhangad, Scheduled Tribe. 76. In view of the above observations, this relief cannot be granted to the petitioner. The caste certificate issued to him by the authorities is quite proper. He belongs to Dhangar, which is now declared as Nomadic Tribe for the State of Maharashtra by the Government of Maharashtra. 77. In pursuance of the interim relief granted to the petitioner, if he has received admission for M.B.B.S. or any other course on the basis that he belongs to Dhangad community, Scheduled Tribe, then his admission stands cancelled. 78. The learned Counsel for the petitioner has argued that the petitioner has prosecuted his studies for a considerably long period and equitable relief be given to him and he be allowed to complete the education. 79. However, it is to be noted that when the interim relief was granted, it was very well known to the petitioner that this relief lasts only till the final disposal of the matter. So, the petitioner had no reason to believe that the interim relief will continue even if the matter is decided against him. So, the question of equitable relief in such circumstances does not arise. 80. Furthermore, when the petitioner does not belong to Dhangad, Scheduled Tribe, he cannot get a seat in that category. If such a thing is permitted, it will mean that the constitutional provisions are being violated. So, considering the observations made by the Supreme Court in the case of Madhuri Patil (cited supra), we do not think that the petitioner be allowed to continue his studies. He has obtained admission on the basis of interim relief treating him as Dhangad, Scheduled Tribe. Hence, interim relief is vacated. 81. Writ petition accordingly stands dismissed. Rule discharged. However, there will be no order as to costs. WRIT PETITION NO. 1469 OF 1997 82. The petitioner has contended that the Mahatma Phule Krishi Vidyapeeth, Rahuri, advertised various posts, such as, Assistant Professor, Agricultural Botany; Senior Research Assistant, Agricultural Botany; Junior Research Assistant in the Discipline of Agronomy, etc. The reservation as per the Rules was provided for all the reserved categories for filling up these posts. The petitioner has contended that he belongs to Dhangad community, which is Scheduled Tribe. He had applied for certificate to that effect to the authorities. However, the authorities have not issued him the certificate as belonging to Dhangad, Scheduled Tribe. Because of this, he is not able to get employment for any of the posts in the said Krishi Vidyapeeth, on the ground that he belongs to Scheduled Tribe. 83. Here again, the contention of the petitioner is that, though he is shown as belonging to Dhangar caste, Dhangar and Dhangad are the same and, therefore, he should be considered as Dhangad, Scheduled Tribe.84. In view of the above discussion, this contention of the petitioner is not at all tenable. He belongs to Dhangar caste, which is now declared as Nomadic Tribe, as pointed out above; and he is entitled to that certificate only. The Sub-Divisional Officer, Beed, has rightly rejected his claim that he belongs to Dhangad, Scheduled Tribe. 85. Hence, the writ petition is devoid of any merits. It is accordingly dismissed. Rule discharged. There will be no orders as to costs. 86. In view of this, the petitioner is not entitled to any benefit that he may have received because of the interim relief granted by this Court, as per the order dated 22-4-1997. Interim relief also stands vacated. WRIT PETITION NO. 2469 OF 1998 87. In this petition, the petitioner has contended that he belongs to Dhangar community and Dhangar is Dhangad and, therefore, the authorities be directed to issue certificate to him as belonging to Dhangad community, Scheduled Tribe. He is seeking admission to D.Ed. course and, therefore, his application be considered for admission in the said course as belonging to the category of Scheduled Tribe. 88. From whatever evidence he has produced on record, it is very clear that he belongs to Dhangar caste and not Dhangad Scheduled Tribe. 89. In view of the above observations, he cannot be considered as belonging to Scheduled Tribe, Dhangad community; and, therefore, the authorities cannot be directed to issue the certificate to that effect. The petitioner is also not entitled to admission to any course on the basis that he belongs to Dhangad, Scheduled Tribe. However, he may seek admission according to his caste, Dhangar. 90. Hence, this writ petition stands dismissed. Rule discharged. However, there will be no order as to costs. CONTEMPT PETITION NO. 30 OF 1999 91. In view of the decision in the main matter, Writ Petition No. 1469 of 1997, this contempt petition be placed before the appropriate Court for hearing and disposal in accordance with law. Petition dismissed.
"2001 BCR 195 (Sup)"