1998 Supreme(Bom) 592

IN THE HIGH COURT OF BOMBAY
A.V. Savant S. Radhakrishnan, JJ.
Pandurang Rangnath Chavan .....
Petitioner.
Versus
The State of Maharashtra others ....
Respondents.
Writ Petition No. 1961 of 1991, decided on 9-10-6-1998.
Advocates appeared:
R.G. Ketkar, for the petitioner.
C.R. Sonavane, A.G.P., for the respondents.

Headnote:Articles 14, 15, 16, 226 and 341-Denial of promotion.-Denial by department for considering case of applicant for promotion even for general category only because petitioners claim is pending before the Court is an unfortunate situation, petitioner advised to represent his case before authorities, failing which he is allowed to approach Court for relief.

       Articles 226, 341 and 342-SCheduled Caste and Scheduled Tribes (Lists) of Modification Order, 1956-Scheduled Castes and Scheduled Tribes Order, 1950, Part X-Maharashtra Entry 28 (as amended in 1976)-Change of category-Once the petitioners are recognised as Schedule Tribe under Parliaments Act, State Government cannot remove them to category of other bank words class, action of Government was, therefore, unconstitutional and without jurisdiction. On the 25th February, 1986, the petitioner obtained the Castes Certificate from the Executive Magistrate and Tahsildar, to the effect that he belonged to the Hindu-Thakur (Sr. No. 44) Tribe which was recognised as a Scheduled Tribe under the Constitution (Scheduled Tribe) Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956, the Bombay Reorganisation Act, 1960 and the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. On the basis of the said certificate, the petitioner obtained employment as a Sales Tax Inspector in the month of November, 1981 in the Sales Tax Department of the State of Maharashtra and has been working on the said post.

       The petitioner laid voluminous evidence in support of his claim that he belonged to the Scheduled Tribe of Thakur. The evidence consisted of the Caste Certificate issued by the Executive Magistrate on 25th February, 1986, the petitioners birth certificate dated 17th December, 1986 and the school leaving certificate dated 21st September, 1984 which mentioned that he has a Hindu Thakur. The petitioner also produced the certificate from the sarpanch, grampanchayat, Hingni, and a Member of the grampanchayat, Hingni, to the effect that he was a Hindu Thakar, which was a Scheduled Tribe. Evidence was also led in respect of the petitioners close relatives, who were certified to be Hindu Thakars.

       Before coming to the legality of the impugned orders and the G.R. and the wholly erroneous approach of the two authorities, court would prefer to deal with the legal position in the light of the constitutional provision and the decisions of the Apex Court and of this Court on the subject. Article 341 of the Constitution deals with the power of the president to specify certain castes, or races to be Scheduled Castes in relation to a particular State or a Union Territory. Article 342 deals with the Presidents power to specify certain tribes or tribal communities or parts or groups within tribes or trial communities which shall for the purpose of the Constitution, be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. This power has to be exercised after consultation with the Governor of the State.

       The president initially made the Constitution (Scheduled Tribes) Order, 1950, on 6th September, 1950 in exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India. As far as the then State of Bombay was concerned, the relevant portion is to be found in Part III of the Schedule to the said 1950 Order. Entry 21 deals with Thakur. Clause 2 of the said order says that the tribes or trial communities, or parts of, or groups within tribes or tribal communities specified in Parts I to XIV 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. Thus, so far as the erstwhile Bombay State was concerned, Thakurs were declared to be Scheduled Tribes.

       On the 25th September, 1956 the Parliament enacted the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956 amending the Constitution (Scheduled Tribes) Order, 1950 referred to above. Schedule III of the 1950 order dealing with Bombay State was amended by Act No. 63 of 1956. Schedule III to Act No. 63 of 1956 deals with amendments to the Constitution (Scheduled Tribes) Order, 1950, Part III, Bombay. Item 6 dealing with Ahmednagar District. Thus, it is . true that in Act No. 63 of 1956 the area restriction was adhered to and only Thakur or Thakar, including Ka Thakur, Ma Thakur and Ma Thakar belonging to Akola, Rahuri and Sangamner Talukas in Ahmednagar District were declared to be Scheduled Tribe. The petitioner admittedly belonged to the Shrigonda Taluka of Ahmednagar District and, therefore, was not covered by the 1956 Amendment.

       The Department of Society, Government of India, appointed an Advisory Committee to examine the question of revision of lists of Scheduled Casts and Scheduled Tribes and make a report thereon. The committee made its report. The committee took note of the fact that in the lists for many states, including Maharashtra, Scheduled Castes and Scheduled Tribes have been specified with reference to certain localities (usually Districts or Tahsils) within the State. The result was that no person could legally be regarded as a member of a Scheduled Caste or Scheduled Tribe for the purpose of the Constitution unless he belonged to the listed caste or tribe and also resided in the specified localities within the aforesaid States. This had led to anomalous results. Members of the same caste or tribe from ethnological or social point of view were deprived of the special privilege and benefits merely because they resided in different States or different parts of the same State.

       The committee, therefore, recorded its happiness that every State and Union Territory in India and, in appreciation of these considerations, agreed to remove the area restrictions generally. On the basis of this report, the parliament enacted Act No. 108 of 1976 on 18th September, 1976 viz. the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. Section 4 of the said Act of 1976 deals with the amendment to the Scheduled Tribes Orders. The Scheduled Tribes Orders were amended in the manner and to the extent specified in the Second Scheduled to Act No. 108 of 1976. In the Second Schedule, Part IX deals with Maharashtra State. Entry 44 in the said Part IX reads as under:

       "4. Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur and Ma Thakar.

       There is, thus, no doubt whatsoever that by virtue of the said Parliamentary enachnent a person who is either a Thakur, Thakar, Ka Thakur and Ka Thakar, Ma Thakur and Ma Thakar has been declared to belong to a Sched uled Tribe within the meaning of Article 342 of the Constitution.

       What has been said of the scope of the Scheduled Castes Order issued under Article 341 of the Constitution must apply a fortiori to a Scheduled Tribes Order issued under Article 342 of the Constitution. Court is referring to this aspect of the matter, because an attempt has been made on behalf of the respondent State to place reliance on some of the Government Resolutions seeking to declare Thakar as belonging to the Other Backward Classes which is clear inconsistent with the Parliamentary enactment viz. Act No. 108 of 1976 viz. the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 after the area restriction was removed.

       On the 8th July, 1982 the State Government thought it fit to issue another G.R. which is impugned before the court. Under the 8th July, 1982, G.R., the State Government declared that in the G.R. of 13.10.1967 Thakar was added at Entry 200 as an O.B.C. Thus, despite the parliamentary enactment viz., the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, the State Government thought it fit to again declare Thakar as on O.B.C. at Entry 200 in the G.R. dated 13.10.1967.

       Applying the ratio of the decision of the Apex Court in Palghat Jilla ThandanSamlldhaya Samrakshna Samithi and another, Court has no hesitation in coming to the conclusion that it is for the Parliament to specify the tribes of tribal communities or parts of groups within tribes or tribal communities which shall, for the purpose of Constitution, be deemed to be Scheduled Tribe in relation to that State.

       Articles 226, 341 and 342Refusal of caste certificate of S.T. Approach of appellate authority, once accepting the xeroxed documents in holding petitioner as Hindu Thakur at the same time rejecting the xeroxed copies as evidence, they also were erred in taking decision of Apex Court in dealing with sub- caste when the Parliament has already declared the category as Scheduled Tribe.

       Article 342-Schedule Caste and Schedule Tribe Orders Amendment Act, 1976-Second schedule, Part IX, Entry 44, Notification No. CBC 1082/48567/1063/KAS, dated 8.7.1982 by State Government- Thakar caste under the purview of schedule tribe-Effective by presidential order and amendments-Petitioner-Hindu Thakar-Denial of Schedule Tribe status to petitioner not proper.-If a Thakar was declared by the preliminary enactment to be a Schedule Tribe and if the documentary evidence before the committee showed that the petitioner was a Hindu Thakar, such evidence was not inconsistent with the petitioners claim that he belonged to the Thakar Scheduled Tribe.