AMOL NARAYAN WAKKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE petitions under Article 226 challenge a common order passed by the Scheduled Tribe scheduled : Caste Certificate. Scrutiny committee, Korikan Division, Thane dated llth June 2004 invalidating the caste certificates of a1 Most 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,. 1976. The 200' persons were seeking caste validity certificates for diverse purposes? including admission to professional courses, seeking employment or promotion in government and semigovernment. bodies and corporations etc. There is no dispute that all of the applicants belong to the "thakar" community. This is is borne out by the very first sentence of the impugned order, which states that the applicant are all Thakars from Sindnudurg (erstwhile Ratnagiri) district. The Scrutiny committee however, relying upon certain passages from R. E. Ethoven's "tribes and Castes of Dombay presidency" and extracts from the Bombay gazetteer, held that the traits of the Thakar community from the erst while 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 -1361/m dated 21st November 1961. The Committee observed that some of the applicants had earlier obtained caste certificates of Nomadic Tribe, and therefore the act of these applicants of applyinq to the scrutiny Committee was itself illegal. Accordinq 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, 2001 (1) SCC 4 and the decision of this court in Paridurang rangnath vs State of Mah. , 1998 (2) Mah LJ 806 relied upon by the petitioners, the Committee observed:

(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 const i ti. it ion a 1 provisions and the decisions of the Supreme Court and of this court on the subject. Articles 341 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:

(3.) CLAUSE (1) 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 s. s 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) than provides that Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) 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 (1 ). Further Clause (2) goes an ta provide that notification issued under Clause (1) shall not ba 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 th. e petitioners is based on the provisions of Article 342 and it is urged that notification ones 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 (1) it is not open for anyone to exclude any tribe mentioned in the notification an 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 2ist November, 1961. 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 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 evtot? it is pointed out that Government resolution dated 21st November, 1961 has been withdrawn by the State vide Notification dated 2nd June 2004.