2004 Supreme(Bom) 1296
IN THE HIGH COURT OF BOMBAY
Shah A.P. Kamdar S.U., JJ.
Amol Narayan Wakkar another .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 6048, 6627, 6587, 6782, 6786, 7020, 7056 7052 of 2004, decided on 14-9-2004.
Advocates appeared :
Shekhar Naphade with R.K. Mendadkar, in W.P. Nos. 6048, 6627, 6587, 6782 6786/2004, for petitioners.
V.A. Gangal S.C. with P.M. Patil A.G.P., in W.P. Nos. 6048, 6627, 6587, 6782 6786/2004, for respondents 1 to 3 6 to 8 and in W.P. Nos. 7020, 7056 7052/2004, for respondent No. 1 to 3.
G.S. Hegde, in W.P. Nos. 6048, 6627, 6587, 6782 6786/2004, for respondent No. 8-A.
V.B. Naik, W.P. Nos. 7020, 7056 7052/2004, for petitioners.
Headnote:Constitution of India (Schedule Tribes) Order, 1950 - Part II, Entry 21(2) - Scheduled Castes And Scheduled Tribes Orders (Amendment) Act, (108 of 1976), Section 4, Part IX, Entry 44 and Constitution of India, Article 342 - Tribe "Thakar". - Tribe "Thakar" throughout State of Maharashtra has to be treated as Scheduled Tribe. - The petitioners established that they belong to Thakar community but the Committee on erroneous assumption proceeded to hold that Thakars of erstwhile Ratnagiri District are being different than Thakar Scheduled Tribe as described in Entry 44 of Scheduled Tribe Order. Members of the Committee erred in rejecting nearly 200 applications solely on the basis that though the applicants belong to Thakar community they fall outside Entry 44 of Scheduled Tribe Order. The Committee has no competence or authority to go into the question whether petitioners belong to Thakar Nomadic Tribe as has been done in this case. Entry 44 of the Schedule to the Presidential Order notifies Thakars without any area restrictions being Scheduled Tribe within the entire State of Maharashtra. The Scrutiny Committee was thus not justified in proceeding with the inquiry on the basis of alleged socio cultural traits and ethnical linkage to find out whether the petitioners belong to Thakar Scheduled Tribe when admittedly the petitioners belong to Thakar community. The Scrutiny Committee has also failed to see that some of the applicants were earlier issued caste certificates as belonging to Thakar Nomadic Tribe only due to the stand of the State Government which kept on changing and the notifications which were issued by the State Government from time to time contrary to the constitutional mandate. It appears that initially caste certificates were issued on the basis that the applicants belong to Scheduled Tribe and from 1985 to 2001 again they were considered as Nomadic Tribe. It appears that thereafter the applicants have been again granted caste certificates as belonging to Scheduled Tribe which was in consonance with the constitutional mandate. Therefore, the Scrutiny Committee was not right in holding that the applicants were trying to change their status. The Scheduled Tribe Order has to be read as it is and applied accordingly without any tinkering whatsoever. The tribe ``Thakar’’ throughout the State has to be treated as Scheduled Tribe. 2001 (1) Mh LJ (SC) 1 : 2001(1) SCC 4, Foll., 1998 (2) Mh LJ 806, AIR 1965 SC 1269, AIR 1965 SC 1557, (1969) 1 SCC 20, (1972)3 SCC 1 - Relied (1970) 2 SCC 825, 38 ELR 212, - Overruled, (1994) 1 SCC 359, 2003(2) Mh LJ 471, 2004 (2) Mh LJ 578 - Referred, AIR 1980 SC 150, Held, not good law.
JUDGMENT - SHAH A.P., J.: - These petitions under Article 226 challenge a common order passed by the Scheduled Tribe, Scheduled Caste Certificate Scrutiny Committee, Konkan Division, Thane dated 11th June, 2004 invalidating the caste certificates of almost 200 persons including the petitioners which certificates certified them as belonging to the "Thakar" Scheduled Tribe falling under Entry 44 of Scheduled Caste, Schedule Tribes Order (Amendment) Act, 1976. The 200 persons were seeking caste validity certificates for diverse purposes, including admission to professional courses, seeking employment or promotion in Government and Semi-Government bodies and Corporations etc. There is no dispute that all of the applicants belong to the "Thakar" community. This is borne out by the very first sentence of the impugned order, which states that the applicant are all Thakars from Sindhudurg (erstwhile Ratnagiri) District. The Scrutiny Committee however, relying upon certain passages from R.E. Ethoven's "Tribes and Castes of Bombay Presidency" and extracts from the Bombay Gazetteer, held that the traits of the Thakar community from the erstwhile Ratnagiri District, are indicative of nomadic culture, and dependence on village society. The Committee, therefore opined that the Thakars of Ratnagiri District do not belong to the Thakar Scheduled Tribe as described in Entry 44 of the Presidential Order and they are correctly classified as Nomadic Tribe at Serial No. 22 of the Government Resolution in Education and Social Welfare Department No. CBC 1361/M dated 21st November, 1961. The Committee observed that some of the applicants had earlier obtained caste certificates of Nomadic Tribes, and therefore the act of these applicants of applying to the Scrutiny Committee was itself illegal. According to the Scrutiny Committee, when certificates of Nomadic Tribe were granted earlier to Scheduled Tribe certificates the status of the applicants, by their own admission, is of Nomadic Tribe only and it cannot be changed to any other caste or community. As regards the decision of Constitution Bench of the Supreme Court in (State of Maharashtra v. Milind)1, 2001(1) Bom.C.R. (S.C.)620 and the decision of this Court in (Pandurang Rangnath v. State of Maharashtra)2,
1998(4) Bom.C.R. 462 relied upon by the petitioners, the Committee observed:
.." in spite of the above judgments in some individual cases Scrutiny Committees are rejecting claims of Thakar/Thakur by applying affinity test or on some other grounds. Many of such decisions are maintained by the High Court and by the Supreme Court. Once recent decision is of Supreme Court in (Santosh D. Thakur v. State of Maharashtra and another)3, S.L.P. No. 926 of 1999 dated 22-1-2004. Thus, it remains the prerogative of the Scrutiny Committee to adjudicate the social status claims."
The Committee, therefore, concluded that none of the applicants belong to the Thakar Scheduled Tribe and invalidated the claims of the applicants and directed to cancel and confiscate their caste certificates.
2. Before examining the legality of the impugned order of the Committee, it would be useful to refer to the legal position in the light of the constitutional provisions and the decisions of the Supreme Court and of this Court on the subject. Articles 341 and 342 of the Constitution deal with the Scheduled Castes and Scheduled Tribes respectively and contain almost identical provisions. We may extract Article 342 dealing with Scheduled Tribes :
"342. Scheduled Tribes - (1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list o
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