-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No. 6048 of 2004 Amol Narayan Wakkar and anr.. petitioners vs State of Mah and ors....respondents with Writ Petition No.6627 of 2004 Dattaram Madhukar Thakar... Petitioner vs State of Mah and ors..respondents with Writ Petition No.6587 of 2004 Kum Hira Sadanand Maske and ors..Petitioners vs State of Mah and ors.. respondents with Writ Petition No.6782 of 2004 Mangesh G Maskar and ors. Petitioners vs State of Mah and ors..respondents with Writ Petition No.6786 of 2004 -2- Mrs Savita Vitthal Thakur and ors..petitioners vs State of Mah and ors.. respondents Mr. Shekhar Naphade with Mr R.K.Mendadkar for petitioners. Mr.V.A.Gangal Special Counsel with Mr. P.M.Patil AGP for respondents l to 3 and 6 to 8 Mr. G.S.Hegde for respondent no. 8A with Writ Petition No 7020 of 2004 Ashok Vishnu Atak ... Petitioner vs State of Mah and ors...respondents with Writ Petition No.7056 of 2004 Arun Babli Ranshing ....Petitioners vs State of Maharashtra and ors..respondents with Writ Petition No.7052 of 2004 Mohan Babli Ranshing .. Petitioner vs State of Maharashtra and ors.respondents Mr. V.B Naik for petitioners Mr. V A Gangal Special Counsel with Mr. P.M.Patil AGP for respondent nos.l to 3 -3- CORAM:A.P.SHAH & S.U.KAMDAR JJ. Dt l4.9.2004 Per A.P.Shah J. l. These petitions under Article 226 challenge a common order passed by the Scheduled Tribe Scheduled Caste Certificate Scrutiny Committee,Konkan Division, Thane dated llth 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, Scheduled Tribes Order (Amendment) Act, l976. 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 applicants are all Thakars from Sindhudurg (erstwhile Ratnagiri) district.The Scrutiny -4- 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 -l36l/M dated 2lst November l96l. The Committee observed that some of the applicants had earlier obtained caste certificates of Nomadic Tribe, 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 the Constitution Bench of the Supreme Court in State of Maharashtra vs Milind, 200l (l) SCC 4 -5- and the decision of this court in Pandurang Rangnath vs State of Mah., l998 (2) Mah L J 806 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. One recent decision is of Supreme Court in Santosh Thakur vs State of Maharashtra and anr (SLP no.926 of l999) dated 22.l.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 -6- the Supreme Court and of this court on the subject. Articles 34l 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- (l) 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 of Scheduled Tribes specified in a notification issued under clause (l) any tribe or tribal community or part of or group within any tribe or tribal community but save as aforesaid a notification issued under the said clause -7- shall not be varied by any subsequent notification". 3. Clause (l) of Article 342 provides that the President may with respect to any 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. The object of this provision obviously is to avoid all disputes as to whether a particular tribe is a Scheduled Tribe or not and only those tribes can be Scheduled Tribes which are notified in the order made by the President under Article 342 after consultation with the Governor where it relates to such tribes in a State. Clause (2) then provides that Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (l) any tribe or tribal community or part of or group within any tribe or tribal community. The power is thus given to the Parliament to modify a notification made by the President under Clause (l). Further Clause (2) goes on to provide that notification issued under Clause (l) shall not be -8- varied by any subsequent notification, thus making the modification final for all times except for notification by law as provided by Clause (2). Clearly, therefore, Article 342 provides for a notification and for its finality except when altered by Parliament by law. The argument on behalf of the petitioners is based on the provisions of Article 342 and it is urged that notification once made is final and cannot even be revised by the President and can only be modified by inclusion or exclusion by law by Parliament. Therefore, in view of this stringent provision of the Constitution with respect to a notification issued under Clause (l) it is not open for anyone to exclude any tribe mentioned in the notification on the basis of evidence - oral or documentary - if the tribe in question finds specific mention in the notification. It is, therefore, urged that the State Government has acted illegally by classifying Thakars of erstwhile Ratnagiri district as Nomadic Tribe vide Government Resolution dated 2lst November, l96l. According to the petitioners in view of the clear provision contained in Article 342 all the members of the Thakar community throughout the State must be treated as belonging to Scheduled Tribe. The Government Resolution -9- treating the Thakars of erstwhile Ratnagiri district as Nomadic Tribe is, therefore, unconstitutional. It is submitted that Entry 44 should be read as it is and benefit should be given to all the members of the Thakar community. In any event, it is pointed out that Government Resolution dated 2lst November, l96l has been withdrawn by the State vide Notification dated 2nd June 2004. 4. In order to appreciate the submissions of the petitioners it would be necessary to refer to the relevant notifications issued under Article 342 of the Constitution. The President initially made the Constitution (Scheduled Tribes) Order, l950, on 6th September, l950 in exercise of the powers conferred by Clause (l) 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 II of the Schedule to the said l950 Order. Entry 2l deals with ‘Thakur’. Clause 2 of the said Order says that the tribes or tribal 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 -10- to be Scheduled Tribes so far as regards members thereof residing 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, ‘Thakur’ was declared to be Scheduled Tribe. 5. On 25th September l956, the Parliament enacted the Scheduled Caste and Scheduled Tribe Order (Amendment) Act, l956, amending the Constitution (Scheduled Tribes) Order, l950 referred to above. Scheudle III of the l950 Order dealing with Bombay State was amended by Act No.63 of l956. Schedule III to Act No.63 of l956 deals with amendments to the Constitution (Scheduled Tribes) Order, l950. Part IV Bombay, Item 6 reads as follows: "6.(a) In Ahmednagar district; Akola, Rahuri,and Sangamner talukas. (b) In Kolaba district:- Karjat Khalapur, Pen,Panvel Thakur or and Sudhagad talukas Thakar including and Matheran. Ka Thakur, -11- Ka Thakar, Ma Thakur & Ma Thakar (c) In Nasik district:- Igatpuri, Nasik & Sinnar talukas (d) In Poona district:- Ambegaon, Junnar, Khed and Mawal talukas (e) In Thana district:- Thana, Kalyan, Murbad Bhiwandi Bassein, Wada, Sahapur,Palghar Jawhar and Mokhada talukas ". Thus in Act No.63 of l956 the area restriction was adhered to and only Thakur or Thakar, including Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar belonging to the aforesaid areas were declared to be a Scheduled Tribe. The petitioners admittedly belong to Sindhudurg i.e. erstwhile Ratnagiri District, and therefore, were not covered by the l956 Amendment. 6. The Department of Social Scrutiny of India -12- appointed an Advisory Committee to examine the question of revision of lists of Scheduled Castes and Scheduled Tribes and make a report thereon.The Committee made its report.The Committee took note of the fact that in the lists of many States, including Maharashtra, Scheduled Castes and Scheduled Tribes have been specified with reference to certain localities (usually District and Tehsils) within the State.The result was that no person could legally be regarded as a member of a Scheduled Caste or a Scheduled Tribe for the purpose of the Constitution unless he belongs to the listed caste or tribe and also resident 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 privileges and benefits merely because they resided in different States or different parts of the same State. It was observed that this anomaly had its origin in the lists prepared under the Government of India Act,l935. The territorial restrictions were, then,probably introduced either because the social disabilities attached to certain castes and tribes were appreciably more distinctive in particular localities or because certain castes -13- and tribes were found to be concentrated in appreciable numbers only in the specified localities. Such area restrictions had been criticised both within and outside the Parliament. It operated as a clog on social mobility as the communities concerned would confine themselves to the specified areas, lest, they lose the special privileges and benefits by moving out of the specified area.It was rightly pointed out that consistent with the policy of social integration , the tribes, in particular, should be encouraged to abandon their isolation, and freely intermix with the rest of the population. Another argument which weighed with the Committee was that as a result of the spread of education, many boys and girls of the Scheduled Castes and Scheduled Tribes,who had attained secondary or university level education,had, in the absence of adequate educational facilities near their homes,migrated to regional cities or State headquarters or even outside the State to prosecute higher studies in higher institutions of their choice. The Committee, therefore, recorded its happiness that every State and Union Territory in India had, in appreciation of these considerations, agreed to remove the area restrictions generally. On the -14- basis of this report, the Parliament enacted Act No.l08 of l976 on l8th September,l976 viz the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, l976, Section 4 of the said Act of l976 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 Schedule to Act No l08 of l976. In the Second Schedule, Part IX deals with Maharashtra State. Entry 44 in the said Part IX reads as under:- "44. Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar". There is,thus,no doubt whatsoever that by virtue of the said parliamentary enactment a person who is either a Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur , Ma Thakar has been declared to belong to a Scheduled Tribe within the meaning of Article 342 of the Constitution. 7. At this juncture it is necessary to refer to the decisions of the Supreme Court laying down para meters of the inquiry to be conducted in this regard by the court. The Constitution Bench in the case of B Basavalingappa vs D -15- Munichinnappa, AIR l965 S?C l269 examined the provisions of Article 34l which contained similar provisions for the scheduled casts with reference to an election dispute and held as follows: "It may be accepted that it is not open to make any modification in the order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and therefore, must be deemed to be included in caste A. It may also be accepted that whenever one caste has another name it has been mentioned in brackets after it in the Order.. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order". 8. The decision in B Basavalingappa’s case was followed in another Constitution Bench judgment in Bhaiyalal vs Harikishan Singh, AIR l965 SC l557, and in Parasram vs Shivchand (l969) l SCC 20 and Kishorilal Hans vs Raja Ram Singh, (l972) 3 SCC l. In two cases i.e. Dina vs Narayan Singh, 38 ELR 2l2 and Bhaiya Ram Munda vs Anirudh -16- Patar, (l970) 2 SCC 825, the Division Bench however, took contrary view that evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to be while stating that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. The decisions in Dina and Bhaiya Ram were overruled by the Supreme Court in Constitution Bench decision in State of Maharashtra vs Milind (supra) In Milind’s case the Constitution Bench reaffirmed the legal position that was enunciated in B Basavalingappa and Bhaiyalal and observed in para l5: "The 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 34l and 342 particularly so when in clause (2) of the said Article, it is expressly stated that said orders cannot be amended or varied except by law made by Parliament. The -17- power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with the Parliament and that too by making a law in that regard. The President had the benefit of consulting States through Governors of States which had the means and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said orders are to be amended,it is the Parliament that is in a better position to know; having 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 enquiry 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 so specifically included, may lead to problems. In order to gain advantage or reservations for the purpose of Article l5(4) or l6(4) several persons have been coming forward claiming to be -18- covered by Presidential Orders issued under Articles 34l and 342. This apart when no other authority other than the Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor tribunals nor any authority can assume jurisdiction to hold enquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one Entry or 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 34l and 342. It is not possible to hold that either any enquiry 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 expressly included". The Court further observed in para 26 as under: -19- "Being in respectful agreement,we reaffirm the ratio of the two Constitution Bench judgments aforementioned and state in clear terms that no enquiry 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 within the scope and meaning of the concerned Entry in the Presidential Order when it is not so expressly or specifically included. Hence we answer the question no. l in negative". 9 In Milind’s case the court held that circulars/ resolutions/ instructions issued by the State Government from time to time, some time contrary to the instructions issued by the Central Government, are of no consequence. They could be simply ignored as the State Government had neither authority nor competency to amend or alter the Scheduled Tribes Order. The Court summarised the legal position in para l4 as under: "In the light of what is stated above, -20- the following propositions emerges- l. It is not at all permissible to hold any enquiry or let in any 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, l950. 2. The Scheduled Tribes Order must be read as it is, it is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 3.A notification issued under clause(l) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (l) of Article 342 only by the Parliament by law and by -21- no other authority. 4. It is not open to State Governments or Courts or tribunals or any other authority to modify,amend or alter the list of Scheduled Tribes specified in the notification issued under Clause(l) of Article 342. 4. Decisions of the Division Benches of this court in Bhaiya Ram Munda vs Anirudh Patar and ors, l97l (l) SCR 804 and Dina vs Narayan Singh 38 ELR 2l2, did not lay down law correctly in stating that the enquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (l) above no enquiry at all is permissible and no evidence can be let in, in the matter". l0. We may also refer to the decision of a three Judge Bench in Palghat Jilla Thandan Samudhaya Samrakshna Samiti and anr vs. State of Kerala and anr, (l994) l SCC 359. The issue in that -22- case was similar to the issue in this case. In that case the question was relating to the implementation of Scheduled Castes Order issued under Article 34l of the Constitution. The question was whether it was open to the State Government to deny the members of Thandan community residing in Malabar district and present Palghat district benefits due to Scheduled Caste included in the Schedule to the Constitution Scheduled Castes Order. The Supreme Court in paras l5, 28 and 36(l) of the report held 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 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, -23- 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 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 caste or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it -24- 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, may lead to