AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5116 OF 2008 Amil Arvind Joshi, residing at C/201, Riddhi Siddhi Society, New MHB Colony, Gorai Road, Boriwali (West), Mumbai – 400 091. ) ) ) ) ... Petitioner Versus 1. State of Maharashtra through is Secretary, Tribal Development Department, Mantralaya, Mumbai – 400 032. ) ) ) ) 2. Scheduled Tribe Caste Certificate Scrutiny Committee, Konkan Division, Thane, through its Deputy Director and Member Secretary having its office at 3rd Floor, Thane Municipal Corporation Ward Office Building, Opp. Kores Company, Vedant Complex, Vartaknagar, Thane (West), Dist. Thane. ) ) ) ) ) ) ) ) ) ) 3. Dy. Collector, Sindhudurg District Sindhudurg. ) ) 4. Competent Authority and of Medical Edeucation, M.S. Having its office at Dental College, Building, CST, Mumbai – 400 001. ) ) ) ) 5. Dean, Grant Medical College, C/o. Sir, J.J. Goup of Hospital, Mumbai – 400 008. ) ) ) ... Respondents AJN 2 Mr. R.K. Mendadkar for the petitioner. Mr. C.R. Sonawane, A.G.P. for the State. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 13TH AUGUST, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED: 24th SEPTEMBER 2009. JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. Rule. The respondents waive service. By consent of the parties, taken up for hearing forthwith. 2. The petitioner claims to belong to Thakar Tribe, which is recognized as a Scheduled Tribe in the State of Maharashtra. Respondent 1 is the Secretary of the Tribal Development Department. Respondent 2 is the Scheduled Tribe Caste Certificate Scrutiny Committee, Konkan Division, Thane (for short, “the Scrutiny Committee”). Respondent 3 is the Deputy Collector, Sindhudurg, who granted caste certificate to the AJN 3 petitioner. Respondent 4 is the Competent Authority, who granted admission to the petitioner to respondent 5- college, under reserved category of Scheduled Tribe during the Academic Year 2004-05. 3. The petitioner was born on 27/3/1987. According to the petitioner, in the primary school, where the petitioner was admitted his caste was duly recorded as Thakar. On 22/8/2003, the petitioner was granted caste certificate by respondent 3 to the effect that he belongs to Thakar Scheduled Tribe. 4. It appears that 200 persons, all Thakars from Sindhudurg District (erstwhile Ratnagiri District), applied to the Scrutiny Committee for verification of their claims towards Thakar Scheduled Tribe for service and education purpose. The petitioner was one of them. Vigilance inquiries were conducted in respect of their claims. The Research Officer passed a remark on the report of inquiry that the traits, characteristics of the applicants do not AJN 4 match with the Thakar Scheduled Tribe. The applicants filed their reply disagreeing with the inquiry report. The Scrutiny Committee by its order dated 11/6/2004 held that the applicants have not been able to prove their claims towards Thakar Scheduled Tribe. The Scrutiny Committee invalidated the caste certificates of all the 200 applicants. 5. Being aggrieved by the said order, some of the applicants preferred Writ Petition No.6048 of 2004 and other companion writ petitions. This court after considering the relevant Presidential Orders, observed that since under Entry 44 of the Scheduled Tribes Order, Thakars are specifically notified in the list of Scheduled Tribes in relation to the State of Maharashtra, Thakars throughout the State must be deemed to be Scheduled Tribe by reason of provisions of the Scheduled Tribes Order. This court further observed that in view of the established legal position, the observations made by the Scrutiny Committee attempting to distinguish “Thakar” of erstwhile Ratnagiri District from “Thakar Scheduled Tribe” AJN 5 are wholly erroneous. This court observed that it was not disputed that the petitioners had established that they belong to Thakar community but the Committee on erroneous assumption proceeded to hold that Thakars of erstwhile Ratnagiri District are different from Thakar Scheduled Tribe as described in Entry 44 of the Scheduled Tribe Order. This court expressed its disapproval of the Scrutiny Committee’s approach in rejecting 200 applications solely on the basis that though the applicants belong to Thakar community, they fall outside Entry 44 of the Scheduled Tribe Order. This court observed that in view of the above judgment of the Supreme Court in State of Maharashtra v. Milind & Ors., (2001) 1 SCC 4, the Scrutiny Committee has no competence or authority to go into the question whether the petitioners belong to Thakar Nomadic Tribe as has been done in this case. It was observed that Entry 44 of the Schedule to the Presidential Order notifies Thakars without any area restrictions as being Scheduled Tribe within the entire State of Maharashtra. This court observed that the AJN 6 Scrutiny Committee was 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 petitioner belongs to Thakar community. This court observed that the Scheduled Tribe order has to be read as it is and applied accordingly without any tinkering with it whatsoever and therefore, the tribe Thakar throughout the State has to be treated as a Scheduled Tribe. In the circumstances, this court quashed and set aside the Scrutiny Committee’s order dated 11/6/2004 and remanded the matter to the Scrutiny Committee to decide each case separately in the light of the legal position stated by it (Amol Narayan Wakkar & Anr. v. State of Maharashtra & Ors., 2005 (2) All.M.R. 16). 6. The petitioner’s case was thus remanded. By the impugned order, the Scrutiny Committee has invalidated the petitioner’s caste claim and, hence, the petitioner has approached this court. AJN 7 7. We have heard Mr. Mendadkar, learned counsel for the petitioner. He submitted that after judgment of this court in Amol Wakkar’s case, it was really not open to the Scrutiny Committee to invalidate the caste claim of the petitioner. Mr. Mendadkar relied on the report of the eminent Anthropologist Prof. Mutatkar and letter dated 24/6/1997 sent by Prof. Mutatkar in response to the report submitted to him by the Tribal Research and Training Institute, Pune, stating that Thakars of Sindhudurg are original Tribals and they should be extended benefits as per Government rules. Mr. Mendadkar also relied upon letter dated 7/4/2001 issued by the same institute in answer to legislative assembly questions stating that persons belonging to Thakar community staying anywhere in the State of Maharashtra are eligible to get certificates certifying that they belong to a Scheduled Tribe if they fulfill the conditions. Mr. Mendadkar submitted that therefore there can be no doubt that persons of Thakar community who are staying in AJN 8 Sindhudurg belong to Thakar Scheduled Tribe. Mr. Mendadkar submitted that the information given by the uncle of the petitioner to the Vigilance Cell which is reproduced by the Scrutiny Committee, tallies with the characteristics and traits of Thakar Scheduled Tribe as reflected in Prof. Mutatkar’s report. He submitted that in any case, the petitioner had produced sufficient evidence before the Scrutiny Committee to satisfy the affinity test. Mr. Mendadkar submitted that the Scrutiny Committee erred in invalidating the petitioner’s caste claim. 8. Mr. Sonawane, learned A.G.P. on the other hand, supported the impugned order. He took us through the affidavit of Ms. Snehal Govekar, Research Officer of the Scrutiny Committee and contended that the petitioner has failed to establish his affinity with “Thakar” Scheduled Tribe. He submitted that therefore, the petition deserves to be dismissed. 9. Before going to the impugned judgment and the AJN 9 arguments of the counsel, we must make it clear that there can be no debate over the proposition that “Thakar” is a Scheduled Tribe so far as Maharashtra is concerned. The Constitution (Scheduled Tribes) Order 1950 stated 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 thereto in relation to the States to which those parts respectively relate, be deemed to be Scheduled Tribes. Part III of the Schedule pertained to erstwhile Bombay State and Thakur is mentioned therein as Scheduled Tribe. Then came the Scheduled Castes & Scheduled Tribes Lists (Modification) Order, 1956 which modified the Constitution (Scheduled Tribes) Order 1950, Chapter III dealing with Bombay State was amended. Area restrictions were adhered to and Thakur or Thakar including Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar belonging to areas mentioned therein were declared to be Scheduled Tribes. 10. The State Government thereafter came out with G.R. AJN 10 dated 21/11/1961 declaring list of Nomadic Tribes of Maharashtra. Thakkar in Ratnagiri Districts were shown as Nomadic Tribes. By G.R. dated 13/10/1967, the State Government listed Thakar as Other Backward Class. 11. Pursuant to the report of the Advisory Committee on the revision of lists of Scheduled Castes and Scheduled Tribes, the Parliament thought it necessary to remove the area restriction which was working as a clog on social mobility and which was inconsistent with the concept of social integration of the different tribes and communities in India. The Parliament, therefore, enacted the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. Entry 44 in Part IX of the Second Schedule to the said Act specifically includes Thakur, Thakar, Ka Thakur, Ma Thakur and Ka Thakar, Ma Thakar as Scheduled Tribes in Maharashtra. 12. On 30/7/1977, the State Government issued G.R. making it clear that area restrictions were removed. On AJN 11 9/12/1977, the State Government deleted Thakar Tribe from the list of Other Backward Class as shown in G.R. dated 13/10/1967. 13. On 30/8/1979, the State Government addressed a letter to Gokul Pakalpa Pratishthan that Tribe Thakar is included in the list of Scheduled Tribes in Maharashtra and, as such, Thakars from Ratnagiri Districts are to be treated as Scheduled Tribes. 14. Surprisingly, on 8/7/1982, the State Government again issued a G.R. classifying Thakar Tribe in the Other Backward Caste (for short, “OBC”) list of Maharashtra. 15. In Pandurang Chavan v. State of Maharashtra, 1998 (2) Mah.L.J. 806, a Division Bench of this court held that G.R. dated 8/7/1982 classifying Thakar Tribe as OBC unconstitutional. This court observed that by virtue of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act No.108 of 1976), a person AJN 12 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. Therefore, the State Government has no power to determine whether a particular community falls within it or outside it. The special leave petition filed challenging the said judgment was dismissed on 12/7/1999. Thereafter, the State Government has withdrawn G.R. Dated 8/7/1982. By G.R. dated 2/6/2004, the State Government deleted Thakars from the list of Nomadic Tribes. 16. The above history was necessary to show that the State Government time and again adopted a vacillating approach by issuing contradictory G.Rs. which created confusion. However, the turbulence is now settled. There is no doubt whatsoever that by reason of Entry 44 in Part IX of the Second Schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar have AJN 13 been declared as Scheduled Tribes in the State of Maharashtra. The question is whether a person who resides in any part of Maharashtra (in this case, Sindhudurg) and claims to belong to Thakar community must be given a certificate declaring that he belongs to Thakar Scheduled Tribe without conducting any inquiry. In other words, the question is, whether any inquiry as to whether a person from Thakar community is a person belonging to Thakar Scheduled Tribe is permissible or not. It is argued on the basis of Amol Wakkar that by reason of Entry 44 of the Scheduled Tribes Order Thakars throughout the State must be deemed to be persons belonging to the Scheduled Tribe Thakar and the Scrutiny Committee was not justified in observing that there is Thakar Scheduled Tribe and Thakur caste and the petitioner does not belong to Thakar Scheduled Tribe. Following extracts from Amol Wakkar were read out to us by Mr. Mendadkar as particularly supporting the petitioner’s case. AJN 14 “1. ... ... ... 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. .... ... ...” “11. ... ... ... A plain reading of Entry 44 would show that Thakar community is included in Scheduled Tribes and it is not permissible for the State Government or the courts to deny the benefits available to the Scheduled Tribe community to the members belonging to the Thakar community in erstwhile Ratnagiri District. ... ... ... In any event, even if it is assumed that there is a separate community which is also called as Thakar in erstwhile Ratnagiri district which is distinct from Thakar community which is notified as Scheduled Tribe in Entry 44 of the Scheduled Tribe Order the State Government is not entitled to issue order or resolutions contrary thereto. Since under Entry 44 Thakars are specifically notified in the list of Scheduled Tribes in relation to the State of Maharashtra, Thakars throughout the State must be deemed to be Scheduled Tribe by reason of provisions of the Scheduled Tribes Order.” “16. In view of this established legal position the observations made by the Scrutiny Committee attempting to distinguish “Thakar” of erstwhile Ratnagiri District from “Thakar AJN 15 Scheduled Tribe” are wholly erroneous and have to be discarded from consideration. It is not disputed before us that the petitioners have 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. ... .... .... 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. 17. Reliance placed by Mr. Mandadkar on Amol Narayan Wakkar’s case (supra) is misplaced. In fact, the Full Bench of this court in Shilpa Vishnu Thakur v. State of Maharashtra & Ors. 2009 (3) Bom. C.R. 497 has clearly observed that the observations made by the Division Bench in that case run contrary to the judgment of the Supreme Court in Madhuri Patil & Anr. v. Addl. Commissioner, Tribal Development, (1994) 6 SCC 241 and are impliedly overruled by the Supreme AJN 16 Court in State of Maharashtra & Ors. v. Ravi Prakash Babulalsing Parmar & Anr., (2007) 1 SCC 80. 18. It is now necessary to refer to the decision of the Full Bench in Shilpa Vishnu Thakur’s case (supra). In that case, following three points were referred for determination of the Full Bench. “(i) Should the paramount consideration in determining the caste claim of a person be documentary evidence or, as the Supreme Court held, “anthropological moorings and ethnological kinship” and is the “crucial affinity test” relevant and germane for such a decision ? (ii)(a)In cases where the documents produced by a person claiming to be belonging to a particular caste satisfy the requirement, for example, in the case of “Thakur”, if all the documents produced / filed and relied upon by a candidate denote his caste as “Thakur” then, without validating the caste claim with reference to the “crucial affinity test”, should the caste claim be validated or not? (b) In a case where a person is not in possession of any document to meet AJN 17 the requirements of a particular caste claim can the claim be scrutinized on the basis of the crucial affinity test”, and a validity certificate be issued? (c) Where a person who claims to belong to a particular caste has some documents in his favour and/or partially satisfied the crucial affinity test, can the claim be certified and is the candidate entitled to his caste certificate being validated?” 19. It was, inter alia, urged before the Full Bench that since “Thakur, Thakar” is a Scheduled Tribe under Entry 44 of the Second Schedule to the Amending Act of 1976, all Thakurs are entitled to the benefits due to the Scheduled Tribe of Thakur, Thakar. It was submitted that under the Scheduled Tribes Order of 1950, the area restrictions held the field but after the Amending Act of 1976, the Parliament removed such restrictions. In the circumstances, the application of the affinity test would not be permissible in law, the Parliament having determined that for the State of Maharashtra, all Thakurs would be deemed to be Scheduled Tribes. The Entry in the Amending Act of 1976 must be construed as it stands. AJN 18 20. In this connection, the Full Bench referred to the Supreme Court judgments in Palghat Jilla Thandan Samudhaya Samrakshna Samithi & Anr. v. State of Kerala & Anr., 1994 (1) SCC 359 and Milind’s case (supra) and rejected this argument. The Full Bench observed that in Palghat Jilla Thandan Samudhaya Samrakshna Samithi’s case (supra), the Supreme Court observed that the court cannot assume the jurisdiction to hold an inquiry or let in evidence to determine whether the terms of the Presidential Order include a particular community though not specifically named. In Milind’s case (supra), the Supreme Court held that it is not permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part thereof is included in the general name even though it is not specifically mentioned in the entries concerned in the Constitution (Scheduled Tribes) Order, 1950. The Scheduled Tribes Order must be read as it is and it is not permissible to say that a tribe, sub-tribe or a AJN 19 part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order, if it is not specifically mentioned. The Supreme Court observed that in short, neither the State Government nor the court can hold that a part of a tribal community, though specifically mentioned in the Scheduled Tribes Order, would stand excluded. Conversely, it would be impermissible to hold that though a tribe or tribal community is not specifically mentioned in the Scheduled Tribes Order, that other tribe is synonymous with what is specifically mentioned. The Full Bench clarified that whether a particular applicant is able to establish a claim that he or she belongs to a tribe which has been designated in the Scheduled Tribes Order is a distinct issue and that is a matter which has to be determined on the basis of all available evidence. The Full Bench cleared the confusion by observing that neither the judgment in Palghat Jilla Thandan Samudhaya Samrakshna Samithi’s case (supra) nor the judgment in Milind’s case (supra) prohibit an inquiry into the AJN 20 question as to whether an applicant in fact belongs to a Scheduled Tribe. While coming to this conclusion, the Full Bench usefully referred to its judgment in Ravi Prakash Parmar’s case (supra). 21. Following are the conclusions drawn by the Full Bench. “(i) The burden of establishing that the applicant belongs to a tribe notified as a Scheduled Tribe is on the applicant under Section 8 of the State Act. The Competent Authority which issues the caste certificate, the Appellate Authority and the Scrutiny Committee have powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, particularly in summoning and enforcing the attendance of persons; requiring the discovery and production of documents; receiving evidence on affidavit, requisitioning any public record and issuing commissions for the examination of witnesses or for the production of documents under Section 9 of the Act. The Competent Authority before whom an application for a caste certificate is filed has to be satisfied about the genuineness of the claim under Section 4(1). The Caste Scrutiny Committee is required by Section 6 to verify each caste certificate before it issues a AJN 21 certificate of validity. Under the Rules, an application for grant of a certificate has to be accompanied by a full disclosure on affidavit containing information stipulated in sub-rule (2) of Rule 3 and documents referred to in sub- rule (3). Under sub-rule (9) of Rule 4, the Competent Authority, if it is not satisfied with the claim of the applicant on a scrutiny of the evidence produced, is empowered to order a further inquiry as it deems fit. After considering the evidence produced by the applicant or any other person on his behalf and the statement of the applicant and after taking into account the material gathered by the Competent Authority, the Competent Authority has to issue a certificate if it is satisfied about the genuineness of the claim. In an appeal against the decision of the Competent Authority, the Appellate Authority is empowered under Rule 8 to receive or call for further documents before passing such further orders as it deems fit. Once the caste certificate is issued, an applicant has to submit documents for verification by the Scrutiny Committee under Rule 12(2) and an affidavit in Form-F containing full disclosure of the information relevant to the determination of the tribal status. Under Rule 12(2), the Scrutiny Committee, if it is not satisfied with the documentary evidence produced, has to forward the application to the Vigilance Cell for a school, home and other inquiry. Under sub-rule (4), the Vigilance Officer has to personally verify and collect all the facts about the social status claimed by the AJN 22 applicant. If the Scrutiny Committee is not satisfied about the claim of the applicant on the basis of the report of the Vigilance Cell and other documents available, a notice to show cause is issued to the candidate for a personal hearing. The Scrutiny Committee must be satisfied about the genuineness of the claim and the correctness of the Scheduled Tribe certificate. If it is not satisfied, it has to pass an order of cancellation and of the confiscation of the certificate. The Competent Authority, the Appellate Authority and the Scrutiny Committee exercise quasi- judicial powers in arriving at a determination with reference to a claim to belong to a Scheduled Tribe. These Authorities must have regard to the entire body of evidence, including the documentary and oral evidence. The affinity test is an integral part of the determination of the correctness of the claim. As quasi-judicial authorities, each of these Authorities must apply settled principles of law in the evaluation of evidence. A claim can be allowed only where the Authority is satisfied about the genuineness and the correctness of the claim on the basis of the entire evidence on the record. (ii) (a) The mere fact that the documents produced by a person reflect his surname as being synonymous with the name of a designated tribe, is not sufficient to establish that the applicant belongs to a Scheduled Tribe. Before a person can be regarded as belonging to a AJN 23 Scheduled Tribe, that person must demonstrably be a member of the tribe. Allowing claims merely on the basis of an overlap between the surname of the person as reflected in the documents produced and the name of a designated tribe may result in a grave miscarriage of justice and lead to the grant of benefits to persons who are not genuinely members of a designated tribe. In order to determine whether a person genuinely belongs to a designated Scheduled Tribe, the Scrutiny Committee must have regard to the entire body of evidence including on the question as to whether the applicant has satisfied the affinity test. (b) Where a person is not in possession of documentary evidence to meet the requirement