-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 3054 of l994 Sharadchandra Kisan Thakur..Petitioner vs 1. State of Maharashtra & ors.. respondents Shri P N Joshi for petitioner Smt Sushma Bhende, A.G.P. for respondents. CORAM: A.P.SHAH & D.Y.CHANDRACHUD JJ. CORAM: A.P.SHAH & D.Y.CHANDRACHUD JJ. CORAM: A.P.SHAH & D.Y.CHANDRACHUD JJ. Dt 23rd June 2005. P.C. . Rule. Respondents waive service. By consent, Rule is made returnable forthwith. l. The learned Counsel appearing for the petitioner submitted that in the light of the judgment of this Court in Pandurang Rangnath Chavan Vs. State of Maharashtra and others; 1998(2) Mh.L.J.806, Chandsrakant Bajirao Shinde Vs. State of Maharashtra and others; 2003(2) Mah.L.J.471 and unreported judgment of this court in Writ Petition No.2745 of 1988 (Raviprakash Babulalsing Parmar Vs. State of Maharashtra and others decided on 28th July, 2003) the impugned order of the Caste Scrutiny Committee dated 2nd May, 1994 cannot be sustained. The Scrutiny Committee observed in its order as under: "It is open to anybody to claim as -2- belonging to a Scheduled Tribe community on the basis of similar nomenclature of caste and tribe, but no socio cultural affinity and ethnic linkage whatsoever between them. The group which claims to be belonging to a Scheduled Tribe community must prove that it (the group concerned) is from the same stock of people (with whom it claims to have socio cultural affinity and linkage) declared as a Scheduled tribe community under the Constitution of India. At this point it should be noted that the caste Thakur (including its various categories)- (purely non tribal group)- has no socio cultural affinity and ethnic linkage whatsoever with the Thakur Scheduled Tribe belonging to the various categories of the caste Thakur (purely non tribal group) cannot in any way whatsoever pose as belonging to the Thakur Scheduled tribe community. The principle on which the Supreme Court decision in the case of Dadaji alias Dina vs Sukhdeo Babu and ors (l980 SCR l50) is based is certainly applicable -3- in this case with equal force. The claim of a person as belonging to a Scheduled Caste/ Scheduled Tribe by birth, has to be verified to the effect that the person and his parents actually belonging to the community claimed and the same is included in Presidential Order specifying the scheduled castes/ scheduled tribes in relation to the concerned State. In this case, it has been already proved from the available evidence in front of the Scrutiny Committee, that the family concerned originally belongs to the Thakur category of the caste Thakur (purely non tribal group) by birth". 3. The Scrutiny Committee then went on examining various other aspects including affinity test, ethnic linkage and socio-cultural traits of the petitioner to find out whether the petitioner belongs to "Thakur Scheduled Tribe" and ultimately held that the petitioner does not belong to "Thakur Scheduled Tribe" and held his caste claim as -4- invalid. 4. We may quote with approval the following passage from the judgment of the Division Bench of this Court in Chandrakant (supra) wherein Division Bench has an occasion to consider an identical issue which is posed before us. " 5. The Constitution (Scheduled Tribes) Order, 1950 was issued on September, 1950 in exercise of powers conferred upon the President of India by clause (1) of Article 342 of the Constitution of India. In the Schedule appended to the said Order, admittedly Thakar was not notified as a Schedule Tribe within the then State of Bombay. Thereafter by the Scheduled Caste and Scheduled Tribes Orders (Amendment) Act, 1956, the Presidential Order, 1950 was amended and in some of the districts of the State of Bombay Scheduled Tribes Thakur or Thakar including - Ka Thakur, K Thakar, Ma Thakur, Ma Thakar were included. Thereafter with effect from 18.9.1976, the Scheduled Caste and Scheduled Tribes Orders (Amendment) -5- Act, 1976 came into force, amongst other amending the Presidential Order i.e. Constitution Scheduled Tribes Orders, 1950, Entry No.44 of the Schedule, Part IX Maharashtra thereof notifies "Thakur", "Thakar", "Ka Thakur", "Ka Thakar", "Ma Thakar" without any area restriction being Scheduled Tribe within the entire State of Maharashtra. 8. The Constitution Bench of the Supreme Court recently had an occasion to consider inter alia this aspect in State of Maharashtra Vs. Milind and others; 2001(1) Mh.L.J.(SC) 1 -(2001) 1 SCC 4. In paragraphs 15, 28 and 36(1) of the report, it was ruled thus: 15. Thus it is clear that States have no power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. Number of persons in order to gain advantage in securing admissions in educational -6- institutions and employment in State Services have been claiming as belonging to either Scheduled Castes or Scheduled Tribes depriving genuine and needy persons belonging to Scheduled Castes and Scheduled Tribes covered by the Presidential Orders, defeating and frustrating to a large extent the very object of protective discrimination given to such people based on their educational and social backwardness. Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub caste; a group or part of tribe or sub tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said order cannot be amended or varied except by law made by Parliament. The power to include or exclude amend or alter Presidential Order is expressly and conclusively conferred on and vested with Parliament and that too by making a -7- law in that regard. The president had the benefit of consulting the States through Governors of States which had the means and machinery to find out and recommend as to whether a particular cases or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it is Parliament that is in a better position to know having the means and machinery unlike courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the Schedule of the Presidential Order, when it is not specifically included, my lead to problems, in order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This -8- apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders. Neither the State Government nor the courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or tribe is included in Presidential Orders in one entry on the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning content and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included. 28. Being in respectful agreement we reaffirm the ratio of the two Constitution Bench judgments -9- aforementioned and state in clear terms that no inquiry at all is permissible and no evidence can be let in to find out and decide that if any tribe or tribal community or part of or group within any tribe or tribal community is included within the scope and meaning of the entry concerned in the Presidential Order when it is no so expressly or specifically included. Hence, we answer Question 1 in the negative. 36(1) It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribes or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950." In all these four writ petitions, it is not disputed before us that the Committee has recorded a finding that -10- the petitioners have established that they belong to "Thakur" but the Committee on erroneous assumption proceeded that Thakur Community is being different than "Ka Thakur and Ma Thakur". We are unable to appreciate the approach of the learned members of the Committee in analysing the issue posed before it. In view of the judgments of this Court referred to above that the Committee has no competence or authority to go into questions whether the petitioners belongs to Thakur higher caste and or it has done in the present case. We are in respectful agreement with all three judgments of the Court referred to by the learned Counsel for the petitioners. We also approved the view taken by the learned Judges of the Division Bench in Raviprakash unreported. Though the learned Judges rendered separate but concurring judgment, we endorse the view taken by our learned brother Kochar J, who was the member of the Division Bench who has decided Raviprakash’s case (supra). -11- In view of the above said judgments, to which we respectfully agree and adopting the same reasons, the orders challenged in these petitions are required to be set aside. Accordingly, impugned orders passed by the Scrutiny Committee in all these writ petitions is set aside, Rule made absolute. No order as to costs." 5. In the present case it is not disputed before us that the Committee has recorded a finding that the petitioner belongs to "Thakur" but the Committee on erroneous assumption proceeded to hold that "Thakur Community" is different than "Thakar Scheduled Tribe". In the light of the decision of this Court in the case of Chandrakant Bajirao Shinde Vs. State of Maharashtra and others (supra), the Scrutiny Committee was not justified in proceeding with the inquiry on the basis of socio-cultural traits, affinity test, and ethnic linkage to find whether the petitioner belongs to Thakur Scheduled Tribe when admittedly the documents produced by him show in unequivocal terms that his caste was "Thakur". We, therefore, quash and set aside the order of the Scrutiny Committee. Respondents are directed to issue the caste validity certificate to the petitioner as belonging -12- to Thakur Scheduled Tribe within a period of two months from today. 6. Rule is made absolute accordingly. No order as to costs.