Bombay High Court
Motilal Namdeo Pawar vs Scheduled Tribe Certificate ... on 22 December, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 07 OF 2014
Motial S/o. Namdeo Pawar, ... Petitioner.
age: 48 Yrs., Occ. Service,
R/o. Plot No. 2, Khodenagar,
Pakhal Road, Wadala, Nashik
Tq. & Dist. Nashik.
V/s.
1. Scheduled Tribe Certificate Scrutiny ... Respondents.
Committee, Nashik, Gadkari Chowk,
CBS Road, Nashik, Dist. Nashik.
Through its Member Secretary.
2. Executive Engineer, Public Works
Department, Nashik, Untwadi Road,
Dist. Nashik.
3. Executive Engineer, North Division,
Public Works Department, Nashik,
Untwadi Road, Green Building,
Infront of Dekshinmukhi Maroti Mandir,
Nashik, Tq. & Dist. Nashik..
---
Ms. Prachi Tatke, Advocate i/by Mr. Vaibhav Sugdare,
Advocate for the Petitioner.
Mr. B. V. Samant, AGP for the State.
---
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CORAM : S. C. DHARMADHIKARI AND
SMT.BHARATI H. DANGRE, JJ.
DATE : 22nd DECEMBER, 2017
(Judgment Reserved on : 06.12.2017)
( - " - Pronounced on : 22.12.2017)
JUDGMENT : (Per Smt.Bharati H. Dangre, J.)
1 The present writ petition is one in the series where
Respondent No.1, Scheduled Tribe Certificate Scrutiny
Committee (for short, hereinafter referred to as the Respondent
No.1 Committee), on verification of the claim of "Thakur"
Scheduled Tribe, has rejected the claim of the Petitioner on
the grounds which have been found to be unsustainable by this
court in a series of judgments.
The petitioner claims to be belonging to "Thakur",
Scheduled Tribe and he claims that he is resident of Anturli,
Taluka Bhadgaon, Dist. Jalgaon and since the year 1960, the
father of the petitioner has shifted to Nashik for service
purpose. The petitioner obtained a certificate on 04.03.1989,
to be belonging to the "Thakur", Sheculed Tribe. On the basis
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of the said certificate, the petitioner came to be appointed on
the post of "Driver", reserved for Scheduled Tribe, in the
Respondent No.2 Department, by appointment order dated
10.12.1991. Subsequent to his appointment, his claim as
belonging to Scheduled Tribe was forwarded to the
Respondent No. 1- Scheduled Tribe Certificate Scrutiny
Committee at Nashik, for verification. As on the date, the
petitioner has rendered 22 years of service and according to
the petitioner his service record is clean and unblemished.
The grievance of the petitioner relates to the
order passed by Respondent No.1-Committee on 22.11.2013
on verification of a certificate issued by the Sub- Divisional
Officer, Nashik Division, Nasik City, Nashik. On examination
of the claim of the petitioner, the respondent no.1-Committee,
by a detailed order has arrived at a conclusion that though in
the school records of the applicant, his father etc.. the caste
is recorded as "Hindu Thakur" and /or "Thakur", the applicant
has failed to fit himself in the entry appearing at Serial No. 44
i.e. Thakur, Scheduled Tribe. Respondent No.1-Committee
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has further concluded that the appellant has failed to establish
his affinity and ethnic linkage towards the "Thakur",
Scheduled Tribe community appearing at serial no. 44 and
therefore, the claim of the applicant / the petitioner, as
belonging to Thakur, Scheduled Tribe, is not sustainable and
is declared as invalid. Resultantly, the caste certificate
issued to the petitioner by the Sub-Divisional Magistrate,
Nashik City, Nashik dated 04.03.1989 is also canceled and
confiscated. It is this order which is assailed before us.
2 We have perused the impugned order. The order
runs into 33 pages. Perusal of the impugned order reveals that
it is nothing but a repetition of the grounds which, the
Respondent No. 1-Committee usually tenders, while rejecting
the claims referred to it, as belonging to "Thakur", Scheduled
Tribe. The Committee before referring to the documents
furnished by the applicant / petitioner in support of his claim,
categorized the documents which included the school leaving
certificate in respect of the applicant's father - Shri Namdev
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Sakharam Pawar issued by the Head Master, Zilla Parishad
Prathmik Vidya-Mandir, Anturli Bk., Tal. Bhadgaon, Dist
Jalgaon, wherein the caste of applicant's father is recorded as
"Thakur" and the date of the admission is reflected as
02.07.1942. Another document, the Respondent No.1
Committee has referred to as furnished by the applicant, is the
xerox copy of general school admission extract of his father -
Namdev Sakharam Pawar issued by the Head Master, Zilla
Parishad Prathmik vidya Mandir, Anturli Bk., Tal. Bhadgaon,
Dist Jalgaon, wherein the caste is recorded as "Thakur" and
date of admission is 02.07.1942. Another document is the
school leaving certificate in respect of one Kashiram Supdu
Thakur, issued by the Head Master, Zilla Parishad Prathmik
Vidya Mandir, Anjanvihire, Tal. Bhadgaon, Dist Jalgaon,
wherein the caste is recorded as "Thakur" and the date of the
admission is 01.02.1920.
These are some of the documents which have been
relied upon by the applicant and those are pre-constitutional,
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wherein the caste of the near relatives of the petitioner, has
been recorded as "Thakur".
3 The Respondent No.1-Committee then proceeds to
frame three issues namely : (i) whether the tribe claim of
the applicant is proved by way of documentary evidence, (ii)
whether the applicant has established ethnic linkages towards
"Thakur", scheduled tribe community, and, (iii) whether the
applicant has established the affinity towards "Thakur",
scheduled tribe appearing at serial no. 44.
The issues framed by the Committee in the
impugned order are identical to the issues which are usualy
framed by the Committee, while deciding any claim belonging
to any Scheduled Tribe category. Perusal of the impugned
order reflects an interesting reading; as far as issue no. 1 is
concerned, the Committee has dealt-with the documents
produced by the petitioner / applicant before it individually.
As regards the documents pertaining to the year 1942, the
Respondent No.1 Committee has observed that in all the
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documents the caste is recorded as "Hindu Thakur" and/ or
"Thakur". The Committee further proceeded to observe that
as the claimants were claiming themselves as belonging to
Scheduled Tribe, the Committee cannot solely rely upon the
documentary evidence such as school record, birth record or
other revenue records etc.., where the caste is reflected as
"Hindu Thakur" or "Thakur" because so far as "Thakur" is
concerned, the said caste is also found in other communities
also. For the said proposition, the Committee then makes a
reference to the judgment of this court in writ petition no.
1953 of 2007 (Dipika Subhash More vs. State of
Maharashtra & Ors. ) and in particular to para 8 of the said
judgment. In para 8 this court has observed that :
"8. Mere mentioning of the name "Thakur"
against the caste column in any public document
cannot be a sole ground to hold that person
belongs to Thakur, Scheduled Tribe. As Thakurs
are found amongst Kshatriya, Rajput, Sindhi,
Maratha, Bramhins etc... In the said circumstances,
as indicated above, the affinity text becomes
crucial ......".
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The reference is also made by the Scrutiny Committee to the
observations made by this Court at Bench at Aurangabad in
Writ Petition No. 2791 of 2011 (Chetan Yuvraj Thakur vs.
State of Maharashtra & Ors.), in particular paras 8 and 11 of
the same, which read thus :
... "8. The next of the submission of the
learned counsel was that the document regarding
grandfather of the petitioner right from 1929
would show that he belonged to Thakur
Community, which fact has not been appreciated in
proper perspective by the respondent no. 2
Committee. However, the respondent no. 2
Committee has, in fact, appreciated the said
document as could be seen from internal page no.
15(d) of the impugned judgment. The Committee
has pointed out that the said document does not
show that the grandfather of the petitoner
belonged to Thakur Scheduled Tribe."
"... 11. In the circumstances, the Committee
rightly observed that "Thakukr" caste is also found
in non-tribal communities such as Kshtriya Thakur,
Rajput Thakur, Pardeshi Thakur, etc.., and unless
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the Petitioner established ethnic linkage and
affinity test to prove that he belongs to Thakur
Tribe, the certificate cannot be validated.".
Based on this, the Committee sets out that since the caste
"Thakur" is also found in other communities, merely relying on
the documentary evidence can benefit the pseudo claimants
who intend to take benefit of their caste entries as "Thakur"
in the school records and other records and due to mass
awakening, such claimants are trying to grab benefits meant
for the weaker sections by taking advantage of similarity of
nomenclature and pass themselves as "Thakur", Scheduled
Tribe. Respondent No.1-Committee observe that it would be
imperative to rely upon the affinity test to verify whether the
claimant is really belonging to Thakur, Scheduled Tribe or not
and that the applicant will have to establish his affinity and
ethnic linkages towards "Thakur", scheduled tribe community
at serial no. 44. As regards the validity certificate, on which
the petitioner, has placed reliance in respect of the one
Sunildatta Dattatraya Pawar, issued by the Scheduled Tribe
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Caste Certificate Committee at Nashik dated 28.08.2000. The
Committee observed that the validity holder has not filed
any affidavit and /or nor produced any documentary evidence
to establish his blood relation with the applicant and it also
further observed that the said certificate was issued by the
Committee on the basis of the law laid down by the High
Court in writ petition nos. 2746 of 1998, 5454 of 1998 and
856 of 1989 and the law laid down by the High Court at that
relevant time was based on the judgment of the Apex Court in
the case of Palghat Jilla Thandan Samudhaya
Samrakshana Samithi and Anr. Vs. State of Kerala and
Anr. (1994 (1) SCC 359). The Committee further concludes
that while deciding the case of Sunil Murlidhar Thakur, the
Apex Court has observed that the view taken by the High
Court was not right and that the High court was not justified
in disposing of the writ petition by merely making reference
to the decision of the Apex Court in Palghat Jill Thandan
Samudhya Samrakshan Samithi & Ors.. The Committee
therefore, did not attach any importance to the said validity
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certificate. Then the Committee very boldly observed in para
21 as under :
"21. We reiterate that to fulfill the constitutional
norms, a person must belong to a tribe before he
can stake his claim to be a member of a notified
Scheduled Tribe. When an advantage is obtained by
a person in violation of the constitutional scheme,
a constitutional fraud is committed."
It is further most respectfully submit that in
following similar cases wherein the certificate of
validity was granted to the relatives of the
concerned applicants though Scrutiny Committee
has rejected their tribe claim on the basis of affinity
test, the findings made by the Scrutiny Committee
in such matters were upheld by the Hon'ble High
Court.
1. Writ Petition No. 2153 of 2007 Nita Diwan
Bhamare vs. State of Maharashtra and others;
2. Writ Petition No. 1968 of 2007 Shamkant Kailas
Thakur vs. State of Maharashtra and others;
3. Writ Petition No. 2151 of 2007 : Hitendra
Raghunath Mahale vs. State of Maharashtra and
others;
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4. Writ Petition No. 2152 of 2007 : Jaiwant Dilip
Pawar vs. State of Maharashtra and others, and In a
very recent judgment of Hon'ble High Court of
Judicature at Bombay Bench at Aurangabad in Writ
Petition No. 9627 of 2011 : Dinesh Ramesh Thakur
& Ors. vs. State of Maharashtra.
The documents listed at Sr. No. 3 and 16 are
affidavits of applicant. So far as affidavit made by the
applicant which is enlisted at Sr.No. 3 is concerned, the
committee observes that this affidavit is made by the
applicant on 04.03.2004 and submitted to Scrutiny
Committee along with his proposal. In the said affidavit
neither the applicant has mentioned that the tribe claim
of his so called cousin Sunildatta has been validated by
the Scrutiny Committee nor has he furnished any
genealogical tree showing the blood relation with the
said so called validity holder. But later on the applicant
has filed another affidavit dated 05.09.2013 stating that
the said validity holder viz. Sunildatta Dattatraya
Pawar is his cousin brother and also produced a
genealogical tree."
4 As regards issue no. 2 - "Whether the applicant
has established ethnic linkages towards "Thakur", scheduled
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tribe", the Committee took note of the fact that the petitioner
is ordinary resident of village Anturli, Tal. Bhadgaon, Dist.
Jalgaon. The impugned order then makes a reference to the
constitution (Scheduled Tribe) Order 1950 and the subsequent
Scheduled Caste and Scheduled Tribe Order (Amendment) Act,
1956, where the list of scheduled tribes in then State of
Bombay, the "Thakur", Scheduled Tribes was restricted in
respect of 25 Tahsils of 5 Districts, namely, Ahmednagar,
Kulaba, Nasik, Pune and Thane. The Committee then
observes that it is clear that the applicant was not ordinary
resident of the area, which was dwelling place of "Thakur",
scheduled tribe community. Then the Committee offers
interesting comment on the Scheduled Caste and Scheduled
Tribe Order (Amendment) Act, 1976, which was published on
18th September, 1976, by which the area restriction is
removed. The Committee makes following observations in
this regard and reproduce the same. -
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"The background is that the said area restriction
was removed basically for the election purpose, in as
much as a person coming from a particular restricted
area in which a particular tribal community was
found to be inhabiting. There was always a
possibility of such tribal having migrated from that
area and inhabiting in an area outside the said
restricted area (as shown by the Presidential Order
prior to the year 1976). This clearly means that
even after the migration, if a person is a tribal and
by his migration, he should not cease to be a tribal
and should not be deprived from getting the
advantages of his being tribal. The area restriction
however, did not mean that any person who
claims to be a tribal outside the said area where a
particular community was not found earlier, his
claim to be accepted merely on the face of it. In
fact, what is required to be done is that if any person
who is at the relevant time residing in an area where
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there is no original inhabitation of that Scheduled
Tribe. If he/she desires to make good his/ her
claim about a person belonging to that particular
tribe, for example, persons coming from "thakur"
community will have to establish that they or their
predecessors have migrated from such an area and
at present are residing in an area where they were
not residing prior to area restriction removal
notification of the Presidential Order.
As a result of removal of area restriction for
certain tribal communities, many non-tribal
communities having similar nomenclature staying
outside the tribal area and also the communities,
which belong to entirely different ethnic stocks but
having similarity of nomenclature, started claiming
the status of those Scheduled Tribes which were
confined to their original habitat in tribal pockets.
This trend has become more serious and
cognizable and sizeable number of such claimants
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is making endeavour to claim the benefit of
constitutional reservations.".
5 The Committee then further observes that the
applicant's father was admitted in the school in the year 1942
and it is reflected by the fact that his family was well aware of
the importance of education and they were educationally
well sound even prior to independence and prior to the
Presidential Order, 1950 but the applicant's family is not
ordinary resident of the restricted area habitated by "Thakur",
scheduled tribe community. The Committee then makes
reference to the judgment of this court in the case of
Murlidhar Ramkrishna Ghate vs. State of Maharashtra in
writ petition no. 2748 of 2000, delivered by the Division
Bench, comprising of Hon'ble Justice F. I. Rebello and Hon'ble
Justice R. V. More, wherein the Hon'ble Division Bench has
made observations about the population figures of scheduled
tribe, including "thakur" and it has found enormous increase
in the figures in the census of 1981 as compared to preceding
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census of 1971. These Committees in turn concluded that the
petitioner was not an ordinary resident of the habitated area
of Thakur community and, therefore, he cannot be said to be
belonging to "Thakur", scheduled tribe.
6 Coming to Issue no. 3 - viz. "whether the applicant
has established affinity test towards "Thakur", scheduled tribe
appearing at serial no. 44"; the Committee relied on the
observations made by the Hon'ble Full Bench of the High Court
at Bombay in the case of Shilpa Thakur to set out that it is
indispensable for the Scrutiny Committee to take into
consideration the affinity test while deciding the tribe claims
of the claimants. The committee then proceeds to make certain
observations on the basis of personal hearing which it offered
to the applicant and the information supplied by him during
the course of hearing in reference to dialect, family deity,
festivals, surnames of the applicant's relatives, etc.. The
committee then observes that on perusal of the information
furnished to the Committee by the applicant and his father, the
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information furnished is not consistent with "Thakur",
scheduled Tribe community which appears at serial no. 44.
So it is also revealed that neither the applicant nor his family is
ordinary resident of the area of habitat-ed scheduled tribes
"Thakur". Then the Committee in its usual stride extracts
observations from various judgments of the Hon'ble Apex
Court and this court, and derives a conclusion that the school
record of the applicant reveals that the caste recorded of his
father is "Hindu Thakur" and/or "thakur" but the applicant has
failed to show that he belongs to "thakur", scheduled tribe, an
entry at serial no. 44 in the scheduled tribe order and also
the applicant has failed to establish the affinity and ethnic
linkages towards the "Thakur" scheduled tribe community.
7 We do not find that the committee while rejecting
the claim of the applicant had adopted any subjective
approach to the claim of the petitioner. We had an occasion to
deal with several writ petitions, challenging the orders passed
by the respondent no.1-committee so also other committees,
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empowered to verify the claims of the scheduled tribe in
different parts of the State, particularly "Thakur", the
scheduled tribe. We have noticed that the reasoning adopted
by the Committee in rejecting the claim of the persons
belonging to "Thakur" Scheduled tribe are almost identical and
the claims are scrutinized mostly under three heads namely (i)
sufficiency of documentary evidence (ii) existence of area
restrictions with the effect "Thakur", who were original
residents of 5 districts, as mentioned in Scheduled Tribe
Order (1956), being entitled to claim themselves as "Thakur"
scheduled tribe and (iii) affinity test, which would connect
claimants to "Thakur" Scheduled Tribe.
We have had an opportunity to peruse various
orders passed by the Scrutiny Committee, dealing with the
verification of "Thakur" Scheduled Tribe and we found that
the whole premise around which the order of the Committee
revolves and the pivotal ground on which the Committee
rejects the claim of persons claiming to be "Thakur, Scheduled
Tribe, is that though the entries may be pre-constitutional era,
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which shows the caste "Thakur", it is not a conclusive proof of
the said "Thakur, being the "Thakur, Scheduled Tribe", which
is the entry at serial no. 44. According to the Committee
"Thakur" is also a caste which is found in other communities
and therefore, they expected a claimant to prove that a person,
who claims to belong to the "thakur, scheduled tribe" to have
an entry recorded in pre- constitutional document as "thakur,
scheduled tribe" and not merely "thakur". We are always
astonished of the said reasoning adopted by the Committee.
We, therefore, perused the entry no. 44 of the Scheduled
Tribe Order as it stood in Scheduled Tribe Order of 1950 and
the entry no. 44 as it stands today which reads as follows :
"44. Thakur, Thakar, Ka Thakur, Ka Thakar,
Ma Thakur, Ma Thakar."
The entry is "Thakur", which is recognized as the Scheduled
Tribe amongst other scheduled tribes in the State of
Maharashtra. The entry at serial no. 44 is not the "Thakur, the
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scheduled tribe". The Scrutiny Committee is, therefore,
required to ascertain on the basis of the documentary
evidence, whether the person is "Thakur" which is recognized
as "Thakur", scheduled tribe. As long as our experience goes,
we have not come across any entry in the documents which
are of the pre-constitutional period recording the caste entry
as "Thakur scheduled tribe". Even in the scheduled tribe
order made in the year 1950, the entry plainly reads as
"Thakur". The scheduled tribe order recognizes existing tribes
in the country and enlisted those tribes as scheduled tribes,
after obtaining the necessary inputs by issuance of a
Notification, recognizing some of tribes in existence as
scheduled tribes. Therefore, it is unfathomable to believe that
prior to enactment of the Scheduled Tribe Order of 1950, any
entries would have been recorded as "Thakur scheduled tribe".
This expectation of the Committee that the entries ought to
have been recorded as "Thakur, scheduled tribe", is too much
to expect, since that was never the purport of recognition to
be granted to the existing tribes as Scheduled Tribe. The
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person, who claims to be belonging to "Thakur scheduled
tribe" did not foresee that their caste is going to be recognized
as the scheduled tribe on the Constitution of India being
brought into effect and therefore, they should record their
entry as "Thakur, scheduled Tribe". We have noted other
entries made in respect of the property dealings, mutation
entries, documents in the form of agreement to sale, sale
deeds, where it was normal practice to mention the name of
the person, his place of residence and to mention his caste. We
have not come across any entry in such pre-constitutional
documents also reflecting the caste as "Thakur, scheduled
tribe", but entry "Thakur", which is a recognized Scheduled
Tribe. The reasoning adopted by the Committee is, therefore,
completely fallacious and such reasoning is put-forth by the
committee in cases after cases while rejecting the pre-
constitutional documents recording caste as "Thakur", on
illusory reason that the entry recorded is not "Thakur,
scheduled tribe" but is only "Thakur".
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8 This court had an occasion to deal with the matters
where the verification committee have invalidated the claims
of "Thakur" and such orders were assailed in writ petitions
before this court.
9 This court had delivered considerable number of
Orders/ Judgments, touching these three issues and tested the
invalidation orders passed by the committee on more than one
touchstone. As far as the existence of the documentary
evidence is concerned, though it is noted that, as in the present
case, that the petitioner has heavily relied upon two
documents which are of the pre-constitutional period, the
committee has recorded a finding in the impugned order
that the entry of caste in these documents is mentioned as
"Thakur" but it is not mentioned as "Thakur scheduled tribe".
We fail to understand the said stand of the committee, as the
entry in the scheduled tribe order is "Thakur" and a person
has to establish his claim as belonging to caste "Thakur" as
finds place in the scheduled tribe order, for the first time
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introduced in the year 1950 and the "Thakur" came to be
recognized as a scheduled tribe only for the first time in
1950. As such, in the year 1947-48 there could have been no
entry as "Thakur scheduled tribe". Even as on today, the caste
certificates are not issued as "Thakur' scheduled tribe" by the
competent authority but the caste certificates mentions the
caste as "Thakur" which is recognized as scheduled tribe
since the caste "Thakur" finds place in the scheduled tribe
order. Since the scheduled tribe order has come into effect
in the year 1950, the documents in existence prior to the
inclusion of the caste "Thakur" in the scheduled tribe order,
therefore, have attained great significance to establish the
genuineness, with a specific object that the claimant has not
manipulated the entries intentionally so as to avail benefit of
being a "Thakur". It is for this reason that the pre-
constitutional documents are given weightage. However, to
reject the claim of the claimant like the petitioner on the
ground that though the caste is mentioned as "Thakur", it is
not mentioned as "Thakur scheduled tribe", is nothing but an
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endeavor to defeat the claim of the persons belonging to said
caste. Another common ground on which the committee
usually reject the claims is that the claimant is not able to
establish the affinity test. The Hon'ble Apex Court in the case
of Anand vs. Committee of Scrutiny and Verification of
Tribe Claims & Anr., reported in 2012 (1) Supreme Court
Cases 113, has categorically held that the genuineness of the
caste claim has to be considered not only on a thorough
examination of the documents submitted in support of the
claim but also by applying the affinity test, which would
include the anthropological and ethnological traits. Further the
Apex Court also observed that it is neither feasible nor
desirable to lay down an absolute rule, which could be
applied mechanically to examine a caste claim. However, the
Apex Court has also cautioned that while applying the affinity
test, a cautious approach has to be adopted, since a few
decades ago, when the tribes were somewhat immune to the
cultural development happening around them, the affinity
test could serve as a determinative factor, however, with the
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migrations, modernization and contact with the other
communities, these communities tend to develop and adopt
new traits which may not essentially match with the
traditional characteristics of a tribe and therefore, the affinity
test may not be regarded as a litmus test for establishing the
link of the applicant with a scheduled tribe.
10 The Apex Court has also observed that the
claimant cannot be denied benefit of being belonging to
scheduled tribe on the ground that his present traits do not
match with that of his tribe's peculiar anthropoligical and
ethnological traits, deity, rituals, customs, mode of marriage,
death ceremonies etc., and thus the affinity test can only be
used to corroborate the documentary evidence and should
not be the sole criteria to reject the claim.
11 As regards the issue of affinity is concerned, from
the impugned order, it appears that the petitioner was granted
personal hearing on 06.09.2013 and certain information was
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elicited from the petitioner. It is reflected from the order that
the applicant has furnished the following information :
"a) The applicant is ordinary resident of Anturli Tal.
Bhadgaon, Dist. Jalgaon.
b) The dialect and mother tongue of their community
is "Impure Marathi" and "Ahirani".
c) "Mari Aai" is their family deity.
d) Shimga, Akhaji, Diwali, Dasra are their festivals.
e) Wagh, Pawar, Jadhav, Surwadkar, Deore, Saindane
etc., are the surnames of applicant's relatives."
The Committed in the impugned order observed
that on perusal of the information furnished by the applicant,
the respondent no.1-committee has come to the conclusion
that the information furnished is not consistent with "Thakur",
scheduled tribe community appearing at serial no. 44 and he
fails to establish the affinity and ethnic linkages towards
"Thakur", scheduled tribe appeared at serial no. 44. The
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Committee then refers to series of judgments wherein the
Hon'ble High Court as well as the Hon'ble Apex Court have
laid emphasis on the conduct of the affinity test when the
claimant claims to be belonging to "thakur", scheduled tribe.
This is the only reasoning given by the Committee in arriving
at a conclusion that the applicant has failed to establish the
affinity and ethnic linkages. We are aghast at the observations
made by the Committee.
12 The Hon'ble Apex Court in the case of Madhuri
Patil laid down great emphasis on the ethnological and
anthropological traits which are peculiar to a tribe and while
constituting the committee, mandated an inclusion of
Research Officer, who has intimate knowledge in identifying
the tribal community / group of tribes or tribal communities.
The research officer is not merely expected to match the traits
etc. sought by the applicant, but is expected to investigate the
community's social status claim by finding out as to what is
his place or his origin, whether he is migrated from his original
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place and to collect all other information by throwing light
on his social status including peculiar traits / customs, etc..
What is expected is the scrutiny from an expert viewpoint.
The research officer is expected to have intimate in depth
knowledge in identifying the tribes or tribal communities.
However, we find that it is completely lacking in the exercise
carried out by the scrutiny committee. The committee looks at
the claim with great suspicion as if the claimant is approaching
the committee to obtain validity and he is spurious claimant
not a genuine scheduled tribe. In some cases, the committee
has observed that if the applicant and his forefathers were
genuine scheduled tribe then why they did not avail benefits
of numerous schemes implemented by the tribal development
department, as if every scheduled tribe is aware of such
schemes and has obtained the benefit of such schemes. The
committee, therefore, determines this factor as a distinct and
distinguishing factor, distinguishing the genuine "Thakars" /
"Thakurs" from the pseudo "Thakurs". The said approach of
the Committee goes totally contrary to the spirit of the whole
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process of verification laid down under the Madhury Patil's
case and the degree of the scrutiny which is expected to be
carried out under the Act of Maharashtra Act No. 23 of 2001.
13 Another ground on which the claim of the
petitioner and most of the "Thakurs" claiming to be scheduled
tribe is rejected is that the claim is not from the area where the
"Thakurs" were found in namely, 25 tahsils and 5 districts.
This court in the case of Dinesh Ramesh Thakur vs. State of
Maharashtra, reported in 2012 (4) Mh.L.J.396 has laid down
that the Scrutiny committee is competent to inquire, interalia,
in the original place of residence and particularly, persons
who claims to be a member of the Scheduled Tribe and as such
an enquiry is not prohibited. While making the said
observations, the court has placed reliance on the judgment of
this court in the case of Deepika Subhash More vs. State of
Maharashtra & Ors., wherein the division bench has observed
that removal of area restrictions by the Act of 1976 meant
that the persons coming from "Thakur" community would
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have to establish on oath or by proper procedure that they
migrated from Sahyadri Region after the removal of area
restrictions. The said issue was referred to the full bench
and the full bench in the case of Yogita d/o. Anil Sonawane
vs. State of Maharashtra & Ors., reported in 2017 (1)
Mh.L.J. 643 has held in para 27 as follows :
"27. The relevance of demonstrating as to
whether petitioners or their ancestors, who claim the
status of Thakur Caste, a Scheduled Tribe, who
migrated from the area for which the Thakur tribe and
other sub-tribes of Thakur were declared as Scheduled
Tribe before the removal of area restriction by Act No.
108 of 1976, was a matter of consideration before the
Division Bench in the matter of Dinesh Ramesh Thakur
vs. State of Maharashtra and others, reported in 2012
(4) Mh.L.J.396 = 2013(3) Bom. C.R. 463. The Scrutiny
Committee has held that the removal of area
restriction by Act No. 108 of 1976 would not enable
any person belonging to any tribe/community to claim
the status of Thakur Scheduled Tribe, and he will have
to establish that he or his predecessors have
migrated from the earlier prescribed area. The
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decision of the Scrutiny Committee, in the aforesaid
matter, was under challenge before the Division
Bench. The Division Bench, on consideration of
various judgments of other Division Benches, dealt
with the issue, and relying upon Full Bench judgment
decision in the matter of Shilpa Vishnu Thakur, has
drawn conclusions in para 37 of the judgment, which
reads thus :
"37. We need not dilate over the issue as, in our
view, upon removal of the area restriction by the
amending Act of 1976, the persons belonging to a
particular Scheduled Tribe, though residing in
different areas than earlier specified or migrated
from the said area, can also claim to be belonging
to the same Scheduled Tribe. In our view, however,
the respondent Tribe Scrutiny Committee is not
prohibited from applying the test of original place
of residence as one of the factors to be considered
in arriving at a decision of validation of the claim
of the claimant in view of the clear pronouncement
of law in Full Bench decision of this court in Shilpa
Vishnu Thakur vs. State of Maharashtra and others,
quote (supra)."
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14 A careful perusal of the Constitution (Scheduled
Caste and Scheduled Tribes Orders, 1950) would reflect that
the said order is published in exercise of the powers conferred
by clause (1) of Article 342 of the Constitution, by the
President after consultation with the Governors of the said
State. Article 342 of the Constitution of India empowers the
President to specify by public notification, the tribes or tribal
communities or parts of or groups within the tribes or tribal
communities which shall for the purposes of the Constitution,
be deemed to be Scheduled Tribes. Article 342 reads as
follows :
"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
purposes 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
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notification issued under clause (1) 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 shall not be varied by any
subsequent notification."
Article 340 of the Constitution empowers the President of
India to appoint a Commission, consisting of such persons, as
he may think fit, to investigate the conditions of socially and
educationally backward classes within the territory of India
and the difficulties under which they labour and to make
recommendation of such steps that should be taken by the
Union or any State to remove difficulties and improve their
conditions. On recommendations of the Commission, the
President is authorized to specify such of the tribes or tribal
communities which shall be deemed to be Scheduled Tribes in
relation to the State or the Union territory as the case may be.
Further it is only the parliament which is authorized by law
either to include or exclude any tribe from the list so
published.
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The Scheduled Tribe Order issued by the President
of India only identifies certain tribes which are already in
existence in the territory of the State, to be Scheduled Tribes,
who in turn are entitled for availing of the benefits which are
conferred under Part XVI of the Constitution. The Scheduled
Tribes Order does not create 'Tribes' but only enlists the tribes
on a detailed study by the Commission appointed under Article
340 of the Constitution of India in relation to the
backwardness of such tribes as 'Scheduled Tribes' of a
particular State so that certain benefits are conferred upon
them by the State in exercise of its enabling powers.
The Constitution (Scheduled Tribes Orders, 1950)
relating to the State of Maharashtra included entry no. 44 in
relation to the "Thakur" tribe. The Scheduled Castes and
Scheduled Tribes Orders, came to be amended by Act No. 63
of 1956 on 25th September, 1956. By the said amendment,
the entry in respect of the "Thakur" tribes came to be amended
and entry no. 6 of the Scheduled Tribes Order (Amendment),
1956, pertaining to Bombay State (Part- III) reads as follows :
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"6.(a) In Ahmednagar district - |
Akola, Rahuri and Sangamner talukas |
|
(b) In Kolaba district - |
Karjat, Khalapur, Pen, Panvel and |
Sudhagad talukas and Matheran |
| Thakur or
(c) In Nasik dstrict | Thakur
Igatpuri, Nasik and Sinner talukas | including Ka
| Thakur, Ka
(d) In Poona district | Thakar, Ma
Ambegaon, Junnar, Khed and | Thakur and
Mawal talukas | Ma Thakar.
|
(e) In Thana district - |
Thana, Kalyan, Murbad, Bhivandi |
Bassein, Wada, Shahapur, Palghar, |
Jawhar and Mokhada talukas |
Thus, by the Act of 1956, the Constitution (Scheduled Tribes)
Order,1950, came to be amended. The said Act No.63 of
1956, by section 5 provided, that where the list of Scheduled
Castes and Scheduled Tribes in relation to any State was
varied by the Amending Act, the population, as at the last
Census of the Scheduled Castes or of the Scheduled Tribes in
that State shall be ascertained or estimated by the Census
Authority in such manner, as may be prescribed and shall be
notified by that Authority in the Gazette of India. The change
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effected in the scheduled appended to Orders of 1950 by the
Amendment Act was necessarily by specifying the areas as to
whether the enlisted tribe, where the tribes notified
throughout the State was recognized as such or tribal
population residing in a particular area was declared to be
Scheduled Tribes.
The Scheduled Castes and Scheduled Tribes Orders
1950 underwent an amendment by Act No. 108 of 1976,
enacted on 18th September, 1976. It would be gainful to
reproduce the statement of objects and reasons of the Act No.
108 of 1976, which resulted in the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976. The same
is reproduced as below :
"STATEMENT OF OBJECTS AND REASONS
Under the Scheduled Castes and Scheduled
Tribes Orders some communities have been specified as
Scheduled Castes or as Scheduled Tribes only in certain
areas of the State concerned and not in respect of the
whole State. This has been causing difficulties to
members of these communities in the areas where they
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have not been so specified. The present Bill generally
seeks to remove these area restrictions. However, in
cases where continuance of such restrictions were
specifically recommended by the Joint Committee on
the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Bill, 1967, no change is being effected.
The Committee had also recommended exclusion of
certain communities from the lists of Scheduled Castes
and Scheduled Tribes. These exclusions are not being
made at present and such communities are being
retained in the lists with the present area restrictions.
Such of the communities in respect of which the Joint
Committee had recommended exclusion on the ground
that they were not found in a State are, however, being
excluded if there were no returns in respect of these
communities in the censuses of 1961 and 1971.
(underlining is ours)
On perusal of the above SOR, it can be noticed that the existing
order, specifying certain communities as scheduled castes or
scheduled tribes only in certain areas of the State and not in
respect of the whole State, was causing difficulties to
members of these communities in the areas where they have
not been so specified. With this background, the area
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restrictions criteria which was introduced in the Scheduled
Castes and Scheduled Tribes (Amendment) Order, 1956 was
done away with. With the result that the tribe identified as
Scheduled tribes in the Scheduled Tribes Order of 1950 , as
amended by the Act of 1956, came to be recognized as
"Scheduled Tribe" throughout the said State, in contrast to they
being confined to a particular area of the State. In fact by
removal of the area restrictions, the tribe or caste, if it is
recognized as a scheduled caste or scheduled tribe in the State
was entitled to avail the benefits irrespective of the places
where they were normally traced to since the tribes normally
dwelled in clusters and mostly found in certain hilly areas.
However, by the amendment of 1976, the restriction of
"thakurs" being hailing from the districts specified in 1956
Order was completely done away with.
15 Perusal of Article 342 makes it aptly clear that the
tribes or tribal communities specified by the President, in
consultation with the Governor of a State, are deemed to be
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scheduled tribes in relation to that State. Once, such tribe or
group of tribes is enlisted in the scheduled tribe order, the said
particular tribe or group of tribes is deemed to be "scheduled
tribe" for that entire State since the scheduled tribe order
notified by the President of India is "in relation to that 'State" ;
there is no intention to sub-divide, classify or discriminate
these tribes based on their place of residence or place of their
origin and it would rather create class of tribes within the same
"tribe" in a particular State. That surely is not the intention
flowing from the scheme of the Constitution.
The reasoning adopted by the Committee that even
after removal of area restrictions, it is incumbent upon the
Committees to find out as to from which place the ancestors of
the claimant have migrated is, therefore, of not of much
significance. We also observe so in the backdrop of a precious
fundamental right conferred on every citizen in the form of
Article 19 (d) and Article 19 (e) of the Constitution of India,
namely to move freely throughout the territory of India and
right to reside and settle in any part of the territory of India.
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In any case, imposition by the Amendment Act (1956), the
area restriction could not have curtailed the said fundamental
right, guaranteed upon the citizens of the country and in
identifying the tribes it was never the intention to deprive
them of the said fundamental right and could not restrain the
advancement of these tribes.
16 The petitioner has placed reliance on the validity
certificate in favour of the second degree cousin of the
paternal side, namely - Sunildatta Dattatray Pawar, issued by
the Scrutiny Committee at Nashik on 28.08.2002. The
petitioner has also submitted an application in Form "F"
along-with the genealogy. The petitioner has also submitted a
detail response to the police verification report and he re-
affirmed on an affidavit filed before the Scrutiny Committee
that Sunildatta Dattatray Pawar is second degree cousin of
paternal side i.e. son of his second degree uncle Shri Namdev
Sakharam Pawar and Dattatray Sampat Pawar, as the first
degree cousin on paternal side. He also stated that Supadu
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Pawar is common ancestor between himself and the validity
holder namely, Sunildatta Dattatray Pawar and he has
demonstrated so from the genealogy tree, which he has
placed on record. The Scrutiny Committee in its usual stride
has brushed aside the said document on evasive ground and
did not pay any adherence to the principles of law laid down
by this court from time to time in cases where the claimant
beings on record validity certificate granted in favour of his
close relative.
17 We have expressed our anguish in various orders
passed by us in respect of the approach of the committees for
verification of the scheduled tribe, particularly, examining the
claim of "Thakur", scheduled tribe. The Committee is
unmindful of the onerous duty cast on it to verify the claims
referred to it, misdirects itself by observing that the
Committee has to examine the claims and to ensure that the
pseudo claimant, who claims to be belonging to "Thakur,
scheduled tribe, do not take benefit meant for the genuine
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scheduled tribe. The Scrutiny Committee and its members
in-spite of several rulings in favour of the claimants belonging
to the "Thakur", scheduled tribe, deliberately brush aside the
binding judgments of this court and on umpteen number of
times has discarded the validity certificates granted in favour
of the close relatives of the claimant on the ground that
every case needs to be decided on its own merits or some time
on the ground that the certificate of validity produced is
issued without any adjudication on merits. We can just be
hopeful that the observations made by us, as above, and in
various other judgments of this court at times, making stern
observations on the Committee's approach would bear some
positive changes.
18 As far as the present case is concerned, we do not
find that the impugned order dated 22.11.2013 passed by the
Respondent No.1 Committee is sustainable in law, as the
reasoning, in rejecting the claim of the petitioner, is totally
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perverse and erroneous and is unsustainable in the light of the
earlier pronouncements by this court.
19 Writ Petition is allowed. The impugned order is,
therefore, liable to be set aside. The Respondent No.1
Committee is directed to forthwith issue the validity certificate
in favour of the petitioner, as belonging to "Thakur, Scheduled
Tribe, at the earliest and in any case, not beyond the period of
four weeks from the date of the receipt of this order.
(SMT.BHARATI H.DANGRE,J.) (S.C.DHARMADHIKARI,J.)
.....
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