Dhongade Vs. State of Maharashtra & Ors.
(Civil Appeal No.
10465 of 2011 Arising out of SLP (C) No. 34229 of 2010)
J U D G M E N T
P. Sathasivam, J.
principal question which arose for consideration in this appeal is whether "Namdeo
Shimpi" caste is a sub-caste within the meaning of Entry 153 (Shimpi) in
the Government Notification notifying list of Other Backward Classes (OBC)
relating to the State of Maharashtra, even though it is not specifically
mentioned as such?
appeal is filed against the final judgment and order dated 21.10.2010 passed by
the High Court of Judicature at Bombay in Writ Petition No. 5772 of 2009 whereby
the Division Bench of the High Court dismissed the writ petition filed by the
a. On 18.01.1997, the
Additional District Deputy Collector, Mumbai Suburban District, Mumbai issued a
Caste Certificate to the appellant herein certifying that she belongs to Hindu
Shimpi Caste which is recognized as Other Backward Class (Sr. No. 153) under
Government Resolution No. CBC 1467/M dated 13.10.1967, Education and Social Welfare
Department and as amended from time to time. In the year 2007, the appellant herein
along with Mrs Safia Parveen Abdul Munaf- Respondent No. 6 contested the elections
of Municipal Corporation of Greater Mumbai from Ward No. 62 reserved for women
candidate belonging to the other backward classes and the appellant won the
election. As per the policy of the State Election Commission, the Caste Certificate
of the appellant 2herein was sent to the Scrutiny Committee to scrutinize the
caste claimed and issue of validity certificate.
b. After the elections, Respondent
No. 6 forwarded a complaint to the Caste Scrutiny Committee (in short `the
Committee') alleging that the appellant's claim of belonging to caste "Hindu
Shimpi" was not proper. The appellant herein also submitted the documents in
support of her claim. By order dated 20.04.2007, the Committee certified that
the Caste Certificate issued to the appellant was valid and accepted that she
belongs to `Shimpi' of Other Backward Class (OBC).
c. Challenging the said order,
Respondent No. 6 filed Writ Petition No. 5112 of 2007 before the High Court of Bombay.
By order dated 15.09.2008, the High Court set aside the order dated 20.04.2007
passed by the Committee and remanded the matter back to it for de novo consideration
and decision in accordance with law. By order dated 19.06.2009, the Committee declared
the claim of the appellant herein as invalid and cancelled the Caste
Certificate issued to her.
d. Aggrieved by the order
dated 19.06.2009, the appellant herein filed Writ Petition No. 5772 of 2009 before
the High Court of Bombay. By order dated 21.10.2010, the Division Bench of the
High Court dismissed the writ petition.
e. Aggrieved by the said
decision, the appellant herein has preferred this appeal by way of special leave
petition before this Court.
Mr. L. Nageswara Rao, learned senior counsel for the appellant and Ms. Asha
Gopalan Nair, learned counsel for respondent Nos. 1 to 3, Mr. S. Sukumaran, learned
counsel for respondent No.5 and Mr. A.V. Sawant, learned senior counsel for the
contesting respondent No.6.
Rao, learned senior counsel for the appellant by drawing our attention to the Government
Resolution dated 03.06.1996 issued by Social Welfare, Cultural Affairs and
Sports Department, Government of Maharashtra, submitted that in view of
illustration given in Clause 25, the Committee and the High Court ought to have
accepted the claim of the appellant and declared that she belongs to `Namdeo Shimpi',
which is one of the castes included in Other Backward Classes (OBCs).
In the above-mentioned
Government Resolution, Clauses 25 and 31 have been pressed into service. They
are as follows: "Clause 25 If in the list of O.B.C.'s if there is a clear reference
of the main caste, the competent authorities should issue caste certificate to the
sub-caste or the similar caste of the main caste i.e., in the list of list of
O.B.Cs' caste Kunbi is included. If in the documents of any person the word
used are Tillori Kunbi or Khaire Kunbi then since the caste Kunbi is in the list
of the O.B.C's and since the said caste is a main caste, such person be granted
certificate of the caste Kunbi.
If only the word/names
Tillori, Khaire are mentioned, the caste certificate cannot be issued to such
person as on the bases of the name Tillori, Khaie the main caste does not get clarified.
Clause 31 In the list of O.B.C's, eligible for the benefits in the state of Maharashtra,
main castes are included and the sub-castes of such caste are also held
eligible for issuance of the caste certificate. Persons belonging to such
sub-castes be issued caste certificate in the name of the main caste.
"It is not in
dispute that the reference mentioned in Clause 25, namely, caste `Kunbi' is
only an illustration. It is, no doubt, true that in terms of Clause 31 in the
list of OBCs eligible for the benefits in the State of Maharashtra, if main castes
are included, in that event, the sub-castes are also eligible for issuance of the
According to the learned
senior counsel for the appellant, based on Clause 31, persons belonging to such
sub-castes can be issued caste certificate in 5the name of the main caste. Per contra,
Mr. A.V. Sawant, learned senior counsel for the contesting respondent No.6
submitted that first of all, the reference made by the appellant is not a full
extract and admittedly it is only a portion thereof and in the absence of full details
about the Government Resolution, it is not safe to rely upon and, more
particularly, in the light of Constitutional judgments of this Court clarifying
the position regarding issuance of caste certificate.
a complaint being made by Respondent No. 6, regarding the validity of the caste
certificate produced by the appellant, the matter was referred to the Regional Caste
Certificate Verification Committee (RCCVC). The Verification Committee,
consisting of the President, Member and Research Officer, on receipt of the complaint
issued notice to both the parties, afforded opportunity to them and after relying
on various materials including the Government Notifications, Regulations etc., by
order dated 19.06.2009, declared the claim of the appellant invalid and cancelled
the Caste Certificate issued by the Additional District Deputy Collector,
Mumbai Suburban District dated 18.01.1997.
said order of the Verification Committee was challenged before the Division
Bench of the High Court and by order dated 21.10.2010, it concluded that the appellant
belongs to `Namdeo Shimpi' caste which does not fall under Entry 153 of the relevant
Government Resolution dated 01.03.2006 issued by the Government of Maharashtra.
It is relevant to point out that though some other sub-castes of caste `Shimpi'
in (OBC) have been mentioned in Entry 153, admittedly, `Namdeo Shimpi' has not
been included under the original caste `Shimpi'. The relevant protion of the
Entry 153 is as under:
caste and Serial no. In the category of Other Backward Class
caste/sub-caste and Serial Number of its original caste included afresh
Shimpi, Shravak Shimpi, Shetaval, Shetawal, Saitaval, Saitawal - 153
In view of the fact that
there is no reference to `Namdeo Shimpi' in Entry 153, the appellant who
belongs to the same caste cannot claim the benefit meant for `Other Back-ward
Classes' of `Shimpi' caste.
issue relating to caste certificate, scrutiny by the Committee, inclusion or
deletion etc. have been considered by the Constitution Bench of this Court in State
of Maharashtra vs. Milind and Others, (2001) 1 SCC 4. Relying upon two earlier
Constitution Bench decisions in (i) B. Basavalingappa vs. D. Munichinappa, AIR
1965 SC 1269 = (1965) 1 SCR 316 and (ii) Bhaiya Lal vs. Harikishan Singh, AIR 1965
SC 1557 = (1965) 2 SCR 877, the Constitution Bench in Milind's case (supra) has
clearly held that an enquiry as to whether any other caste or sub-caste can be
included in the caste or tribe specifically mentioned in the Presidential Order
was wholly impermissible.
factual position in the Milind's case (supra) is as follows:- The respondent, on
the basis of the School Leaving Certificate and other records of himself and his
close relative obtained a caste certificate from the Executive Magistrate,
Nagpur on 20.08.1981 as belonging to "Halba", Scheduled Tribe. On the
basis of that certificate, he was selected in the Government Medical College for
MBBS degree course for the 8year 1985-86 in the reserved category meant for Scheduled
The certificate was
sent for verification to the Scrutiny Committee constituted under the
Directorate of Social Welfare. After necessary inquiry, the Scrutiny Committee recorded
a finding to the contrary and rejected the certificate. The Appellate Authority,
after detailed examination of evidence dismissed the respondent's appeal and held
that the respondent belonged to "Koshti" caste and not to
"Halba/Halbi", Scheduled Tribe.
However, the High Court
allowed the respondent's writ petition and quashed the impugned orders inter alia
holding that it was permissible to inquire whether any subdivision of a tribe was
a part and parcel of the tribe mentioned therein and that "Halba-Koshti"
was a subdivision of main tribe "Halba/Halbi" as per Entry 19 in the Constitution
(Scheduled Tribes) Order, 1950 (for short "Scheduled Tribes Order")
applicable to Maharashtra.
Before the Constitution
Bench, learned senior counsel for the appellant-State of Maharashtra contended
that: 9(a) it was not permissible to hold an inquiry whether a particular group
was a part of the Scheduled Tribe as specified in the Scheduled Tribes
Order;(b) the decision in Bhaiya Ram Munda vs. Anirudh Patar & Ors. (1970) 2
SCC 825, did not lay down the correct principle of law as to the scope of inquiry
and the power to amend the Scheduled Castes/Scheduled Tribes Order; [this
contention involved the specific question as to whether
"Halba-Koshti" caste was a sub-tribe within the meaning of Entry 19 (Halba/Halbi)
of the Scheduled Tribes Order relating to the State of Maharashtra, even though
not specifically mentioned as such].
(c) the High Court misinterpreted
the report of the Joint Committee of Parliament placed before it when
representations for inclusion of "Halba-Koshti" in the Scheduled
Tribes Order were rejected;(d) the High Court also committed an error in
invoking and applying the principle of stare decisis to the facts of the
(e) & (f) the High
Court erred in setting aside the orders of the Scrutiny Committee and the Appellate
Authority which were made on proper and full consideration of evidence and
authorities;(g) the High Court gave undue importance to the
resolutions/circulars issued by the State Government which were contrary to
law;(h) the High Court erred in treating the issue involved in the present case
to have been closed in Abhay caste.
On the other hand
learned senior counsel for the respondent contended that the old records relating
to the period when there was no controversy, clearly supported the case of the
respondent and the School Leaving Certificate issued to the respondent was
valid. He also submitted that it was open to show that a particular caste was
part of the Scheduled Tribes coming within the meaning and scope of tribal community
even though it was not described as such in the Presidential Order.
the appeal but moulding the relief, the Constitution Bench held thus: 11"11.
By virtue of powers vested under Articles 341 and 342 of the Constitution of India,
the President is empowered to issue public notification for the first time specifying
the castes, races or tribes or part of or groups within castes, races, or tribes
which shall, for the purposes of the Constitution be deemed to be Scheduled Castes
or Scheduled Tribes in relation to a State or Union Territory, as the case may
The language and
terms of Articles 341 and 342 are identical. What is said in relation to Article
341 mutatis mutandis applies to Article 342. The laudable object of the said
articles is to provide additional protection to the members of the Scheduled Castes
and Scheduled Tribes having regard to social and educational backwardness from
which they have been suffering since a considerable length of time.
The words "castes"
or "tribes" in the expression "Scheduled Castes" and "Scheduled
Tribes" are not used in the ordinary sense of the terms but are used in
the sense of the definitions contained in Articles 366(24) and 366(25). In this
view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they
are included in the President's Orders issued under Articles 341 and 342 for
the purpose of the Constitution.
Exercising the powers
vested in him, the President has issued the Constitution (Scheduled Castes)
Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950. Subsequently,
some orders were issued under the said articles in relation to Union
Territories and other States and there have been certain amendments in relation
to Orders issued, by amendment Acts passed by Parliament.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
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, 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 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 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 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 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. 13 36.
Finally, the Constitution Bench has concluded that:
a. 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.
b. 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.
c. A notification issued
under clause (1) of Article 342, specifying Scheduled Tribes, can be amended
only by law to be made by 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 (1) of Article 342 only by Parliament
by law and by no other authority.
d. 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 (1) of Article 342.
e. Decisions of the
Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar and Dina v.
Narain Singh did not lay down law correctly in stating that the inquiry 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 (1) above no inquiry at all is permissible and no evidence can be
let in, in the matter."
Kumari Madhuri Patil & Another vs. Additional Commissioner, Tribal Development
& Ors. (1994) 6 SCC 241, this Court has given elaborate directions for
deciding the 14claim of persons who belong to the Scheduled Castes, Scheduled Tribes
or Other Backward Classes. These directions have been reiterated in a recent
decision by a larger Bench of three Judges of this Court in Dayaram vs. Sudhir Batham
& Ors. 2011 (11) Scale 448.
Rao, learned senior counsel, by relying on the position prevailing in the State
of Karnataka, namely, that caste `Namdeo Shimpi' has been included in OBC submitted
that the same analogy may be applied to the State of Maharashtra. We have
already noted the elaborate discussion and the ultimate order of the Committee as
well as the Division Bench of the High Court.
We are satisfied that
before arriving at such conclusion they considered the entire material on
record including the distinction between the list of OBCs in the State of
Karnataka as against the list of OBCs in State of Maharashtra and recorded a finding
that the appellant who belongs to `Namdeo Shimpi' caste does not belong to OBC of
`Shimpi' caste in Maharashtra. In view of the same, we reject the contention of
the learned senior counsel for the appellant.
Asha Gopalan Nair, learned counsel appearing for the State took us through various
averments in the counter affidavit filed by the State of Maharashta. The counter
affidavit filed by the Secretary to the Government of Maharashtra in this Court
shows that pursuant to the recommendations made by the Maharashtra State Backward
Class Commission, the list of castes falling under OBC `Shimpi' has been
amended from time to time. However, even the Government Resolution dated
01.03.2006 does not include `Namdeo Shimpi' under the heading `Shimpi' as OBC.
is brought to our notice that the Maharashtra State Backward Class Commission
has been constituted in terms of the judgment of this Court in Indra Sawhney vs.
Union of India, 1992 Supp (3) SCC 212, which is headed by a retired Judge of the
Bombay High Court and assisted by experts in the field. Further, the said
Commission undertakes extensive studies and make recommendations from time to time
or suggest additions and alterations in the list of OBCs and it is after such
elaborate exercise the final list has emerged as per the Government Resolution dated
The details furnished
in the counter affidavit filed by the Secretary to the Government of Maharashtra
show that the above referred Government Resolution is being updated from 1961
on several occasions. We have already explained that the extract of the
Government Resolution dated 03.06.1996 relied on by Mr. Rao, learned senior counsel
for the appellant dealing with caste `Kunbi' (OBC), has no relevance to the facts
of the present case.
We are also satisfied
that the said Committee has considered the distinction between the list of OBCs
in the State of Karnataka and in State of Maharashtra and has taken note of the
fact that though the Karnataka State has thought it fit to include `Namdeo
Shimpi' under the category of `Shimpi' (OBC), the Government of Maharashtra has
not done so. This has also been rightly highlighted in the impugned order by
the Division Bench of the High Court.
it is not so expressly or specifically included in the Government Resolution/order
along with the main caste, in such case, even if it is synonymous to the one mentioned
in the order, it is not permissible to avail such benefit of reservation. It is
well known that a caste may fall under the category of OBCs in one State, but
the said caste may not be classified as OBC in other State.
At any rate, we are of
the view that no specific evidence was led by the appellant to discharge the burden
of proof on her under Section 8 of the Maharashtra Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance and Verification of)
Caste Certificate Act, 2001.
Inasmuch as the
burden of proof under Section 8 of the said Act being on the person who claims to
belong to that caste, tribe, or class, in view of the factual conclusion by the
Committee based on relevant acceptable material and the decision of the Division
Bench, we are unable to accept the claim of the appellant.
On the other hand, we
are satisfied that the Committee and the Division Bench of the High Court have
considered the entire material in the light of the decisions of this Court and
came to a finding of fact that the appellant does not belong to caste `Shimpi' (OBC)
and belongs to `Namdeo Shimpi' caste which is not OBC in the State of
these circumstances, we do not find any valid ground for interference with the impugned
order of the High Court. Consequently, the appeal fails and the same is
dismissed with no order as to costs.