Shivaraj V. Patil ORDER
Shivaraj V. Patil, J.
1. In this appeal, the following two questions arise for consideration:
1) Whether at all, it is permissible to hold enquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950?
2) Whether 'Halba Koshti' caste is a sub-tribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to State of Maharashtra, even though it is not specifically mentioned as such?
2. On 8-1-1988, this Court passed the following order:
The prayer of the Union of India to be impleaded as party in both the appeals and writ petition as party respondent is granted. The name of the Union of India may be shown as the party respondent when the matter is listed.
Both the sides agree that this matter involves a question which has been decided by the Constitution Bench consisting of 5 Hon'ble Judges of this Court and that there is also a subsequent judgment of a Division Bench of 2 Hon'ble Judges of this Court. One of the points raised is that there is a conflict between the two judgments. Under the circumstances, both sides state that this is a fit case for being referred to the Constitution Bench. We accordingly direct that this matter be placed before the Hon'ble Chief Justice for placing the same before the Constitution Bench. Both the sides state that the matter is very urgent and the matter be listed for early hearing. This request may, however, be addressed to the Constitution Bench.
3. Pursuant to the said order, the appeal is placed before us for consideration and decision.
4. The facts briefly stated to the extent they are relevant and required for the decision are the following.
5. The respondent No. 1 herein filed the Writ Petition No. 2944/84 at the Nagpur Bench of the Bombay High Court to quash the orders passed by the Director of Social Welfare (R-6) and the Additional Tribal Commissioner (R-5) which invalidated the caste certificate issued to him as belonging to Scheduled Tribe. It is stated that Raoji Koshti of Khapa Town in Nagpur Tehsil had a son by name Bajirao who had a son by name Sharad. The present respondent No. 1 namely, Milind is the son of said Sharad. On the basis of school certificate and other records of the respondent No. 1 and his close relatives, he obtained caste certificate from the Executive Magistrate, Nagpur on 20.8.1981 as belonging to 'Halba' Scheduled Tribe which is recognized as Scheduled Tribe. Having the said certificate, he applied to the Government Medical College for admission to MBBS degree course for the year 1985-86 in the reserved category meant for Scheduled Tribes. It appears his name was included in the merit list of the candidates belonging to the Scheduled Tribe. As per the procedure prescribed then, his certificate was sent for verification........