1986 Supreme(Bom) 272

IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari H.H. Kantharia, JJ.
Maharashtra Adivasi Thakur Jamat Seva Mandal others..... Petitioners.
Versus
State of Maharashtra through the Secretary to the Tribal Development Department, Bombay-32 others ..... Respondents.
Writ Petition Nos. 2088 and 917 of 1986, decided on 26-9-1986.
Advocates appeared :
K.M. Mandlik, for petitioners.
A.V. Sawant, A.G. with V.A. Gangal, A.G.P., for respondents.
Smt. Indira Jaising with Rabindra Hajari and K.C. Patel, for Intervenors.

Headnote:Validity of Government Resolutions dated 23-1-1985, 8-3-1985 and 11-121985- Whether Resolution indirectly import area restrictions done away with by act.

       Whether the Government Resolution dated 23-1-1985 constituting the Scrutiny Committee and further Resolution dated 8th of March, 1985 providing for an appellate authority and also the Government Resolution dated 24th April, 1985 supplying the necessary data to the Competent Authority are any way illegal or beyond the scope of Scheduled Castes and Scheduled Tribes Order Amendment Act, 1976.

       One would have expected that in circumstances like these, an expert whom the State Government consults, should be armed with adequate material after taking research, in the structure of the Society, the Caste, the sub-caste and their distinct features, including deities worshiped by them, relations of them, the Caste and community practices etc. In the absence of such material, which is usual in sociological study of the caste and creed, a vague allegation that advantage is being taken by people who do not belong to a particular group may not be enough." Therefore, by this Government Resolution such a data is supplied to the competent authority and scrutiny committee merely as guidelines. It is merely data does not amount to an order or direction. It is neither exhaust ice nor conclusive. While supplying such a data various characteristics of the Tribes are included in it. This does not mean that indirectly the area restrictions are being imported.

       To say the least the 1976 Amending Act was enacted to remove the area restrictions as the legislature came to know about the migration of the tribals from the so called scheduled areas. The compensatory discrimination notion envisaged by Articles 15 (4) or 341 and 342 of the Constitution of India, takes into account the inequalities of social, economic and educational background of the people and seeks the elimination of the existing inequalities by affirmative action. This policy is justified because unequal characteristics of human being are not as a result of inmate superiority or inferiority but of unequal environment in which men are born or forced to live and die. Preferential treatments to unequal to make them equals is no way derogatory or negation of equality but is an aspect of equality to achieve social justice. The whole driving force behind the directive principles of the State policy and the Scheduled castes and Scheduled Tribes order calls for a positive approach to achieve equality by equalizing unequal starting points.

       To say he least the ultimate policy is of assimilation of those tribes with the main society. To bring them in the main stream. The social and constitutional policy is to integrate tribals with larger society and not to preserve them as human specimen for attracting foreign tourists. The change of social profile in todays India admits of increasing openness and mobility. Today one cannot understand the Indian tribal society within the frame work of classical models. The Constitution as a social document envisages a transformation of our society from medieval hierarchical and close society into modern secular and egalitarian society by extending better facilities to the downtrodden to enable them to achieve upward mobility by acquiring social, economical and educational standards. Sociological studies have revealed that as a result of the Constitutional policy of compensatory discrimination many lower status castes have been able to change their social and economical status. If this is so then inspite of the Amending Act of 1976 if the Certificate are being refused on the ground that the persons belong to or reside in a particular district, then it can safely be said that either the competent authority has not understood the Government Resolution or the guidelines issued in that behalf or they are deliberately being misconstrued. This amounts to abuse of power. However, on the basis of the misconstruction or wrong interpretation of Government Resolution by an individual competent authority it cannot be held that the Government Resolution in itself is anyway bad in law. It is the abuse of power and ultimate order passed which will become bad.

       It may also be true that the similar misunderstanding is being carried on by the Scrutiny Committee also. But that is neither here nor there. As a matter of fact the Scrutiny Committee is expected to act with open mind. If with an attitude of enquiry the Scrutiny Committee tries to find out the truth, then there is noting wrong in scrutinizing the merits of each case. The said power of scrutiny cannot be used as means of oppression or harassment. It cannot be forgotten that the Scrutiny Committee acts as a quasi-judicial body, as it practically decides Constitutional rights of a person to get concessions, reversed for the Scheduled Tribes. Ultimately the question as to whether a person or claimant belongs to a particular tribe or not is a question of fact which must depend upon the facts and circumstances of each case, and no general rule can be laid down in that behalf nor a rule of thumb can be followed.

       It cannot also be forgotten that the power conferred upon the Scrutiny Committee is neither unbridled nor arbitrary. The Scrutiny Committee is expected to follow the well known norms and principles of natural justice. The decision given by the Scrutiny Committee is not made final but is subject to an appeal and such an appellate authority has been provided by the Government Resolution dated 8th March, 1985. Further a scrutiny or review is also permitted by the State Government vide Government Resolution dated 11th December, 1985. The Committee is obliged to pass a speaking order and give reasons in support of its findings. Therefore, it will not be correct to say that the Government Resolution issued in that behalf are anyway contrary to the Amending Act of 1976 or are arbitrary or confer an unbridled or arbitrary power upon the Scrutiny Committee.

       From the material placed on record it appears that there is also a caste known by name. Thakure which is amalgamation of certain sub-caste. The details of this sub-caste are given in the accompaniment to the Government Resolution dated 29th April, 1985, though the list is not exhaustive and is merely illustrative. From Entry No. 44 in the II Schedule the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, the Tribes known as Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur and Ma Thakar are notified as Scheduled Tribes. In the list notified by the Maharashtra Government for other Backward Class at Entry No. 200, a caste Thakar is notified as other Backward Class. Therefore from the material placed on record it appears that there is a distinct caste carrying same nomerclature. Hence it is necessary to find out in each case as to whether the claimant belongs to Scheduled Tribe or the Caste carrying the same name. By indirect method or obliquely a Caste which is not included in the Schedule relating to Scheduled Tribe, cannot be equated with or conferred the status of Scheduled Tribes. It is experienced that benefits are snatched away by most vocal classes, and thus keeping the weaker among the weak always weak.

       This not only robs them of their share in benefits but creates further inequalities amongst the unequal. Therefore an enquiry in each case is a must and this is precisely what is contemplated by the various Government Resolutions. It is true, that only because in the various certificates produced by the claimants he is described as Hindu-Thakur. It does not mean that he necessarily belongs to Thakur Caste and not to the Thakur Scheduled Tribe. His or her place of residence is also not a decisive factor. Though it was the case of the State Government in Kum Sunitas case that the tribals cannot be Hindus, the said stand is rightly given up before us. To say the least the stand of the Government in Government Resolution dated 29th October, 1980 is that a person belonging to Scheduled Tribe, may have any religion.

       A Tribunal can be a Hindu also. Therefore only because the claimant belongs to Hindu Religion it will not necessarily follow that be is a non tribal. Similarly only because be speaks Marathi and is not able give certain answers to the queries made necessarily an inference can not be drawn that he not a tribal. Such a straight jacket approach to the problem is wholly impermissible. The Scrutiny Committee is expected to scrutinise each and every case on the basis of the material and evidence produced before it and is not expected to prejudge the issue and decide it on the basis of its own notions.