Chandrakant Bajirao Shinde vs State Of Maharashtra, Through The ...
2003 Latest Caselaw 240 Bom

JUDGMENT

R.M. Lodha, J.

1. The only argument that has impressed us is concerning the incompetence of Caste Scrutiny Committee in holding that though the petitioner belongs to "Thakar", but being of Bhat category he does not belong to Scheduled Tribe.

2. While considering the petitioner's tribe claim, the Scheduled Tribes Certificates Scrutiny Committee (for short, "Scrutiny Committee") held thus:

"After considering all the aforesaid documents and in exercise of the powers vested, the Scrutiny Committee has come to the conclusion that Shri Chandrakant Bajirao Shinde does not belong to Thakar Scheduled Tribe and as such his claim towards the same is held invalid. He belongs to caste Thakar of Bhat category and as such the caste certificate of his belonging to Thakar Scheduled Tribe granted by the Tahsildar of Purandar Vide No. MAG/WS/92/78, dated 17.7.1978 is hereby cancelled and confiscated."

3. It is apparent from the aforesaid finding recorded by the Scrutiny Committee that though the petitioner belongs to caste "Thakar yet since he belongs to caste "Thakar" of Bhat category, he cannot be said to be belonging to 'Thakar' Scheduled Tribe. The question that arises for our consideration is whether the Tribunal was competent to hold so when "Thakar" is notified as Scheduled Tribe in the Presidential Order viz. The Constitution (Scheduled Tribes) Order, 1950 as amended by The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956 and The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

4. The Constitution (Scheduled Tribes) Order, 1950 was issued on 6th September 1950 in exercise of the 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 Scheduled Tribe within the then State of Bombay. Thereafter by the Scheduled Castes 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', 'Ka Thakar', Ma Thakur', 'Ma Thakar' were included. Thereafter with effect from 18.09.1976, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 came into force, amongst other amending the Presidential Order i.e. Constitution Scheduled Tribes Orders, 1950. Entry No. 44 of the scheduled Part IX-Maharashtra thereof notifies 'Thakur', 'Thakar', 'Ka Thakur', 'Ka Thakur', 'Ma Thakur', 'Ma thakar' without any area restriction being Scheduled Tribe within the entire State of Maharashtra.

5. The Presidential Order as is known of for that matter the Scheduled Tribes Order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. This is what has been held by the Supreme court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi and Anr. v. State of Kerala and Anr., . In paragraph 18 of the report, the Supreme Court held thus:

"18. These judgments leave no doubt that the Scheduled Castes Order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. No action to modify the plan effect of the Scheduled Castes Order, except as contemplated by Article 341, is valid."

6. In Palghat Jilla Thandan Samudhaya Samarakshana Samithi, the principal question before the Apex Court was with regard to the validity of the decision of the State of Kerala not treating members of the 'Thandan' community belonging to the erstwhile Malabar District, including the present Palghat District of the State of Kerala as members of Scheduled Castes. In the backdrop of legal position as noted above, in paragraph 19 of the report the Apex Court held thus:

"19. The Thandan community in the instant case having been listed in the Scheduled Castes Order as it now stands, it is not open to the State Government or, indeed, to this Court to embark upon an enquiry to determine whether a section of Ezhavas/Thiyyas which was called Thandan in the Malabar area of the State was excluded from the benefits of the Scheduled Castes Order."

7. The Apex Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi, thus, held that once the Thandan community has been listed in Scheduled Castes Order, no enquiry can be held to determine whether a section of Ezhavas/Thiyya who were called Thandan in the Malabar area of the State were excluded from the benefits of the Scheduled Castes Order.

8. The Constitution Bench of the Supreme court recently had an occasion to consider interalia this aspect in State of Maharashtra v. Miling and Ors., (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 to amend Presidential Orders. Consequently, a party in 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 person 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, 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 Article 341 and 342 particularly so when in Clause (2) of the said article, it is expressly stated that the said Orders 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 exclusively conferred on and vested with 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 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 scheduled of the Presidential Order, when it is not so specifically included, may 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 apart, when no other authority other than 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 inquiry 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 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 aforementioned and stage 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 not 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 tribe 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."

9. Applying the aforesaid legal position, as propounded by the Apex Court, we have no hesitation in holding that Scrutiny Committee was not justified and as a matter of law had no competence to go into the question by holding enquiry that the petitioner belongs to caste Thakar of Bhat category. The Presidential Order has to be read as it is and applied accordingly without any tinkering whatsoever. The tribe 'Thakar' throughout the State of Maharashtra has to be treated as Scheduled Tribe.

10. We, accordingly, quash the Order of Scrutiny Committee and send the matter back to the concerned Scrutiny Committee to re-examine the petitioner's caste claim in the light of the aforesaid legal position and observations made by us. The petitioner is directed to appear before the Caste Scrutiny Committee on 24.03.2003. We except the concerned Caste Scrutiny Committee to hear the petitioner and pass fresh order as expeditiously as possible and preferably within six months from the date of appearance of the petitioner.

11. No costs.

Certified copy expedited.