Writ Petition No.4123 of 1999

3rd June, 2002

Petitioner Counsel: Shri. A. S. GOLEGAONKAR
Respondent Counsel: Shri. V. D. SAPKAL, Shri. S. M. KULKARNI, Shri. S. S. CHOUDHARY, A. H. JOSHI, V. G. SAKOLKAR, SAGAR KILLARIKAR, IRPATGIRE , ANIL GAIKWAD,S/Shri. A. M. SAWANT and MANISH NAVANDER

Cases Cited:
Indra Sawhney, (I) AIR 1993 SC 477 [Para 1,39,68]
Pandurang Rangunath Chavan Vs. State of Maharashtra, 1998 (1) Mh.L.J.806 [Para 3]
K. C. Vasantkumar Vs. State of Karnataka, AIR 1985 SC 1495 [Para 3,58]
State of Maharashtra Vs. Ganpat Pandurang Sankhe, 1991(2) Mh.L.J.1075 [Para 7,40,42]
Nityanand Sharma Vs. State of Bihar, 1996(3) SCC 576 [Para 7,46]
State of Maharashtra Vs. Milind, 2000 AIR SCW 4303 [Para 7,48,49]
State of Madras Vs. Sm. Champakam Deorairajan, AIR 1952 SC 226 [Para 13]
B. Venkataramana Vs. The State of Madras, AIR 1951 SC 229 [Para 13]
Balaji Vs. State of Mysore, AIR 1963 SC 649 [Para 25A]
Palghat Jilla Thandan Samodaya Samaj Vs. State of Kerala, 1994 (1) SCC 359 [Para 28,29]
Srish Kumar Choudhary Vs. State of Tripura, 1990 Supp. SCC 220 [Para 29]
B. Basavalingappa Vs. D. Munichinnappa, AIR 1965 SC 1269 [Para 29,44]
Bhaiyalal Vs. Harikishan Singh, AIR 1965 SC 1557 [Para 29,44]
Kum. Madhuri Patil, AIR 1995 SC 94 [Para 32]
Maharashtra Adivasi Thakur Jamat Seva Mandal Vs. State of Maharashtra, 1986 Mh.L.J.1021 [Para 34]
Tanuja d/o Madanlal Rajpal Vs. State of Maharashtra, 1989 Mh.L.J. 99 [Para 34,58]
Ganesh Gulabrao Survase Vs. State of Maharashtra, AIR 1997 SC 2333 [Para 34]
Parasaram Vs. Shivcharan, AIR 1969 SC 597 [Para 45]
A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261 [Para 49]
Ashok Kumar Thakur Vs. State of Bihar, AIR 1996 SC 75 [Para 65,68]
Indra Sawhney, (II) 1999 AIR SCW 466 [Para 67,68,69]

JUDGMENT

B. H. MARLAPALLE, J. :- The scope of this petition, though initially limited to one particular issue regarding "Thakur" Scheduled Tribes, has subsequently been widened so as to consider the issues arising out of the Mandal Commission Report and the judgment of the Apex Court in Indra Sawhney's case (AIR 1993 SC 477) as well as in (AIR 2000 SC 498) and it encompasses even to examine the scope of Other Backward Classes Commission's procedure, powers for formulation of its recommendations to be made to the State Government as mandated by the law laid down in the said case. It also considers the contemporary social factors and indicators which are more relevant than the traditional or conventional indicators in identifying/ determining the other Backward Classes.

2. With more than fifty years of Independence and the high rate of urbanisation owing to developments, in industry, business, etc. as also the spread of education, higher education both technical and specialised, the social fabric in the rural area does not remain to be the same as it was 50 years ago or in the pre-Independence era. The requirements of time their forced the members of various castes to leave have traditional occupations and take up the posts in Government service or the private sector or the self-employed professionals such as Doctors, Advocates, Chartered Accountants, Consultants, Architects, Designers, etc and therefore, the original social affinity concept has lost its relevance amongst such persons who have switched over or migrated to the urban areas leaving behind their roots in the rural India. The social order in the rural India has also gone through a sea-change with the spread of education, growing awareness about the rights, social obligations and social interactions on account of marital ties, etc. It is in this background that the issues regarding determination of Other Backward Classes or exclusion of certain castes from such classes by the Commission are required to be dealt with.

3. Though the petitioner has challenged the Order dated 29.5.1999 passed by respondent no.2 Scrutiny Committee invalidating his caste claim as belonging to "Thakur" Scheduled Tribe, pursuant to the order passed on 9.3.2001 the following issues were framed for considerations by a larger Bench of this Court:

i. Does the law laid down by this Court in the case of Pandurang Rangunath Chavan Vs. State of Maharashtra and others (1998 (1) Mh.L.J. 806) imply that every person who obtained a caste certificate as belonging to "Thakur/Thakar" Scheduled Tribe is required to be accepted by the Scrutiny Committee to be necessarily belonging to the said caste and his claim is required to be validated without any further inquiry as to whether he genuinely belongs to "Thakur/Thakar" caste, though the Committee is endowed with such powers as per the law laid down by the Apex Court in a catena of decisions?

ii. Whether there is a case to direct the State Government, on the basis of the report submitted by the Expert Committee constituted by the Government vide Resolution dated 16.6.1983, to approach the Government of India for suitable amendments in Entry No.44 of the Presidential Order of 1976 issued under Article 342 of the Constitution of India pertaining to the list of Scheduled Tribes as applicable to the State of Maharashtra?

iii. Whether there is a case to direct the State Government to take effective steps to undertake a study through the Other Backward Classes Commission constituted pursuant to the judgment in Indra Sawhney's case to exclude some of the castes from the existing list of Other Backward Classes (which are in all about 335) in view of the earlier judgment in K. C. Vasantkumar Vs. State of Karnataka (AIR 1985 SC 1495) and approved in Indra Sawhney' case by the Larger Bench?

iv. Whether the reports submitted by the Commission recommending inclusion of various castes in the list of Other Backward Classes are in keeping with the law laid down in Indra Sawhney's case and K. C. Vasantkumar's case and whether such recommendations as acted upon by the State Government call for judicial review by this Court in larger public interest?

4. The petition was, therefore, placed before His Lordship the Chief Justice, who was pleased to pass the following order :

"In the first instance, the matter be placed before a Division Bench which may consider whether the matter requires to be considered by a Larger Bench."

The petition was, therefore, placed before us and we were of the view that the issues so framed for considerations as set-out in para 3 above could be efficaciously dealt with by a Division Bench and decide the matter finally. Taking into consideration the larger social issues of great public importance, involved for decision, we had appointed S/Shri. S. S. Choudhary, A. H. Joshi and V. G. Sakolkar, learned Advocates and to assist them S/Shri. Sagar Killarikar, Irpatgire and Anil Gaikwad, learned Advocates were appointed as Amicus Curiae. Shri. V. D. Sapkal, learned Additional Government Pleader appeared for the State Government as well as for the Maharashtra State Other Backward Classes Commission (the Commission, for short) which came to be impleaded as an additional respondent by our order dated 29.8.2001.

5. Civil Application No.3200 of 2001 was filed by the Yellam Samaj Sanstha for intervention in the matter and the said application was allowed by our order dated 22.7.2001. Similar application being Civil Application No.3200 of 2001 was also filed by three students and they were also allowed to appear in the matter as Intervenors.

6. The first intervenor i.e. Yellam Samaj Seva Sanstha moved another civil application before His Lordship the Chief Justice praying for directions not to place the petition for final hearing before the Division Bench presided over by one of us i.e. B.H. Marlapalle, J. This civil application was disposed of by His Lordship The Chief Justice in terms of the following order :

"Since the Bench presided over by G. D. Patil, J. is not available, the matter may be placed before the Division Bench presided over by Justice B. H. Marlapalle which is assigned civil Writ petitions. The mere fact that the Presiding Judge has passed an interim order is no ground to say that he has made up his mind."

7. During the course of arguments of the learned Counsel for the respective parties, it emerged that some connected additional issues also arise for considerations which are intertwined with the issues already framed in para 3 above and therefore, the following additional issues have been framed for considerations.

i. What should be the relevant factors/indicators to be adopted by the Other Backward Classes Commission for identification of Backward Class of citizens or the castes for being included in the list of Other Backward Classes in the State of Maharashtra?

ii. Whether it is necessary or desirable in larger social interests that the recommendations made by the Other Backward Classes Commission are placed before both the Houses of Legislature?

iii. Whether the tests/parameters laid down by the State of Maharashtra for determining the creamy-layer amongst Other Backward Classes are in keeping with the law laid down in Indra Sawhney's case and if not, what would be the proper parameters for the same purpose?

iv. Whether the decision of this Court in the case of State of Maharashtra and others Vs. Ganpat Pandurang Sankhe and another (1991 (2) Mh.L.J. 1075) holding that "Vanjari" caste originally listed in the other Backward Classes is synonymous to the "Banjara" caste notified as Vimukt Jati in the State of Maharashtra, continues to be a good law in view of the subsequent decisions of the Supreme Court in the case of Nityanand Sharma and another Vs. State of Bihar and others reported in 1996(3) SCC 576 and in the case of State of Maharashtra Vs. Milind and others (2000 AIR SCW 4303 : 2001(1) ALL MR 573 (S.C.))

and

In case the answer is finally in the negative, whether the Government Resolution dated 23.3.1994 notifying "Vanjari" caste as Nomadic Tribe is required to be quashed and set-aside?

8. The Aryan social order was divided into four water-tight compartments which were popularly known as "Chaturvarna". Those outside the system were outcastes (panchamas or atishudras). The four Varnas were (1) Brahmins, (2) Kshatriyas, (3) Vaishyas and (4) Shudras, Shudras and Panchamas were the lowest of the social order and were treated to be untouchables. For their livelihood, they were assigned occupations / duties which were also of the same status like disposal of dead animals, etc. In short, all lowly, menial and unsavoury occupations were assigned to them. They had no alternative but to follow these occupations not only for generation after generation but for century after century. They were made to believe that it was their Karma which assigned them such jobs and social status. It would be relevant in this regard to refer to the public speech made by Dr. Babasaheb Ambedkar on 21/22.3.1920 at a small village by name Mangaon in Kolhapur district of Maharashtra State. It is said that this was his first speech in public life.

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9. The other three Varnas had a specific occupational order. Brahmins were engaged in imparting knowledge and performing pooja to the Gods and deities and attend to the religious ceremonies as priests. Acquiring education and utilising the same for their benefit was their exclusive domain and they came to be engaged as Clerks, Account Keepers under the Kingdoms, Vaishyas were basically from trading / business classes and nature of this trading / business community was directly encompassing the needs or outcome of the two main occupations of Kshatriyas which were agriculture and army. Thus, these two Varnas were spread over in three different classes or occupation-groups namely; cultivators, soldiers and traders. With the emergence of traditional requirements of improved social order, the occupation of manufacture also came up and initially this could be limited to erecting houses, weaving cotton fabric, tools/ equipments required for agriculture, army and for trading. Then came the need of having supportive services of these four branches of community life amongst the Aryan system. If a tool or equipment was required for agriculture or army the requirement of Carpenters, Blacksmith, Potmaker, etc. came up. So was the emergence of other occupations like erecting or building houses, trading and manufacturing of essential items. Thus, the other occupations like Mason, Weavers, Barbers, Washermen, Tailor, etc; were developed. The better-offs amongst the Kashtriya and Vaishyas got themselves involved in agriculture, trading or manufacturing as well as the military service at the relevant times. The jobs which were required for serving these main sectors, namely; agriculture, army, trading and manufacturing were available to those Kshatriyas and Vaishyas who could not find their place in the mainstream of these four branches and therefore, for their survival they had no alternative but to accept these occupations and over generations or centuries they continued in these occupations. With the passage of time, they came to be identified with these occupations e.g. potmaker was called as Kumbhar, carpenter was called as Sutar, Mason was called as Gavandi, Weaver was called as Koshti, Tailor was called as Shimpi, a Barber was called as Nhavi, Washerman was called as Dhobi and so on and so forth. Over a period of time, persons born in these families of their respective occupations were identified only with that social group and they came to be called by the occupation alone which subsequently got the label of a "caste". Thus, the persons belonging to different social orders but got into the same occupation became an endogamous group of social order which came to be named as "caste" which had in fact its origin mainly in the occupations assigned to the respective citizens. Thus, the caste is a "hereditary endogamous and usually a localized group having traditional association with an occupation and a particular position in the hierarchy of castes." As the time passed by, membership in a caste came by birth and the members of each caste started to pursue the same occupations or trades. These castes were created in local hierarchy as well. All these occupations which emerged mainly to cater to the further requirements of four main-streams namely; agriculture, army, trading / business and manufacturing were treated to be of lower social order even in Kshatriya and Vaishya Varnas and the richer ones amongst these two Varnas saw to it that the supporting occupations continued for generations after generations. In the social order they were certainly lower than those who were agriculturists or soldiers or traders or businessmen.

There is also one additional facet of the social order of the ancient Indian way of life. All these occupations also had the need of entertainment and therefore, those of the lower strata of the society had no alternative but to learn some specialised trades of entertainment and thus, came the concept of dancers, musicians, singers, street-entertainers, who are in the local parlance called as Tamasgirs, Gondhali, Vasudev, Devdasni, Masanjogi, etc. They also fell in the lower social order. Ultimately, all those involved in all such occupations other than agriculture (landlords), soldiers, traders, businessmen, etc. were treated and continued to be treated as belonging to the lower class of the society but certainly not falling in the lowest class like Shudras and Atishudras.

Even under the different Indian Kingdoms castes system continued as such. The Muslim or Christian religions, did not recognise such a social order in terms of caste. But when Muslims migrated to India and became part of the Indian society under different emperors including Muslim emperors all of them could not continue to be soldiers and they had to resort to various occupations for survival with the growth of population. This compulsion of survival forced the persons belonging to the Muslim religion as well to enter into occupations prevailing in this land and thus, the occupations supporting the main-streams like agriculture, army, trading and business were adopted by the Muslims as well. They continued as such for generations and centuries and thus, came the caste system directly connected with the occupations amongst the Muslims as well. For example, a weaver in Marathi is called as "Koshti" and in Urdu the same term is called as "Momin". Muslims who were engaged in weaving came to be called as Momins and ultimately amongst Muslims there emerged a separate caste by name "Momin". As is well known Muslim society in India does not recognise Scheduled Castes and certainly there are Muslim groups identified by certain castes solely based on their occupations some of which over a period of time and more particularly, in the post-Independence era came to be recognised as Other Backward Classes. The same legacy is, more or less, true for Jainism and Buddhism which have their origin on the Indian soil.

10. The codification of such classes / castes of intermediary levels which were not Shudras and Panchamas but were socially lower amongst the two Varnas i.e. Kashtriyas and Vaishyas, was undertaken by some provinces towards the beginning of the 20th century. There is no literature - ethnographic or otherwise - showing that any of the Indian Rulers or Princely States had done such a codification upto the Nineteenth Century. It was perhaps the State of Mysore which initially thought it fit to codify these Backward Classes of citizens including the Scheduled Castes i.e. Shudras / Atishudras on the basis of the Census of 1901. This exercise was also aimed at providing for opportunities to the lower classes for appointments in the government which were available only to selected few castes or groups. It is possible that the appointments provided to such lower classes or groups were befitting their social status even in the Government or Princely service. For example, a barber was appointed as a barber and a scavenger as a scavenger only. The concept of codification of Scheduled Castes (untouchables), Scheduled Tribes (aborigines) and other Backward Classes was followed by other States including the State of Bombay.

11. The erstwhile Government of Bombay had issued Government Resolution dated 29th May, 1933, in respect of Schedules of Backward Classes and these classes were divided in three different schedules namely; (1) depressed class - Schedule I, (2) aborigines and hilly tribals - Schedule II and (3) Other Backward Classes - Schedule III. In the last Schedule pertaining to the Other Backward Classes, there were in all 125 castes. By a subsequent resolution dated 23rd April, 1942, the above three Schedules were compressed in two Schedules Schedule A and Schedule B. Schedule A was the list of intermediate communities and Schedule B was the list of Backward communities. In Schedule B, the Scheduled Castes, aborigines and hilly tribals were listed.

12. The founding fathers of our Constitution accepted the doctrine of equality and justice - social, economic and political in a democratic society. Equality has been and is the most single asset of human being at all points of time. All religions and political schools of thought swear by it. The fraternity assuring dignity of the individual has a special relevance in the Indian social order. Articles 14,15 and 16 are the provisions incorporated in the Constitution so as to strengthen the doctrine of equality and bring into reality the principle of social equality amongst all men and women of different faiths, castes, avocations and other classes including Scheduled Castes and Scheduled Tribes. Part XVI of the Constitution containing Articles 330 to 342 has made special provisions relating to certain classes like Scheduled Castes, Scheduled Tribes and Backward Classes - socially and economically.

12A. The present Article 16 of the Constitution corresponds with draft Article 10 presented to the Constituent Assembly and clause (3) thereof read as under :

"Nothing in this article shall prevent the State from making any reservation of appointments or posts in favour of any class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."

It was the Draft Committee under the Chairmanship of Dr. B. R. Ambedkar that inserted the word "backward" in between the words "in favour of any" and "class of citizens". Thus, the final draft of Clause (3) which became Clause (4) of Article 16 of the Constitution reads as under :

"Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the State."

Dr. Ambedkar, during the debate before the Constituent Assembly, stated thus in respect of Article 16(4) of the Constitution as it stands finally :-

"Then with regard to Article 16 Cl.(4) my submissions that it is really impossible to make any reservation which would not result in excluding somebody who has a caste. I think, it has to be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla's Edition on the very first page that there is no Hindu who has not a caste. Every Hindu has a caste - he is either a Brahmin or a Mahratta or Kunby or a Kumbhar or a carpenter. There is no Hindu - that is the fundamental proposition - who has not a caste. Consequently if you make a reservation in favour of what are called backward classes which are nothing else but a collection of certain castes, those who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this country, it is impossible to avoid reservation without excluding some people who have got a caste."

13. Article 15(4) was incorporated by the Constitution (First Amendment) Act, 1951 and the necessity for such an amendment found its place in the case of State of Madras Vs. Sm.Champakam Deorairajan and another (AIR 1952 SC 226) and decision of Seven Judges Bench of the Supreme Court in the case of B. Venkataramana Vs. The State of Madras and another (AIR 1951 SC 229). The Madras Public Service Commission had invited applications for 83 posts of District Munsiffs. It was further notified that the selection of the candidates would be made from amongst the religion, castes and communities pursuant to the Rules prescribed in the Communal G.Os. The reservation was : (1) Harijans - 19, (2) Muslims - 5, (3) Christians - 6, (4) Backward Hindus - 10, (5) Non Brahmin Hindus - 32 and (6) Brahmins - 11. Different and unequal age limits for the candidates of above mentioned different classes were fixed and no age limit was fixed for Harijans and Backward Hindus. The petitioner was a Graduate in First Class and had obtained B.L. degree in second class, had practised for 7 years as an Advocate and appeared before the Public Service Commission for selection to the post of District Munsiff but in vain. He, therefore, challenged the reservation so made and contended that he ought to be selected but for his being a Brahmin. The provisions of Article 16 did not allow such a reservation for different castes/religions. While upholding the reservation made only in favour of Harijans and Backward Hindus, the Supreme Court went on to observe that the ineligibility created by such reservation was not sanctioned under Article 16(4) of the Constitution of India and was an infringement of fundamental right guaranteed to an individual under Articles 16(1) and (2) of the Constitution. Such a reservation, the Court held, was repugnant to the provisions of Article 16 and therefore, void and illegal.

14. Articles 14 enjoins upon the State not to deny any person equality before law or equal protection of laws within the territory of India. The contents and sweep of these two concepts namely; equality before law and equal protection of laws is not the same though they have much in common. The scope of expression "equality before law" is illustrated not only by Articles 15 to 18 but also by other Articles in Part IV and more particularly, Articles 38,39,39A,41 and 46 of the Constitution of India. The concept of "equality before law" contemplates minimizing inequalities in income and eliminating inequalities in facilities and status and provide opportunities to achieve higher economic development. The Constitution aimed at providing a specific place in Article 15 in terms of certain status and powers to the members of the Backward Classes and at the same time prohibiting discrimination on the ground of religion, caste, race, sex or place of birth.

15. Article 340 of the Constitution of India provides for appointment of a Commission to investigate the conditions of backward classes, whereas, Article 338 provides for National Commission for Scheduled Castes and Scheduled Tribes. The scope and ambit of these two provisions, though aimed at upliftment of the respective classes, are not on the same lines. The Commission under Article 340 is for investigating the conditions of socially and educationally backward classes including their difficulties and to make recommendations so as to take steps by the Union or the States for removal of such difficulties and to improve their conditions. The Commission so appointed shall investigate the matters referred to it and present to the President a report with such recommendations. The report so presented together with memorandum explaining the action taken thereon is to be laid before each Houses of Parliament. Whereas, the Commission contemplated within the meaning of Article 338 of the Constitution of India has been vested with the powers as are set-out in Clause (5) thereunder. Clause (8) of Article 338 gives powers of a civil court to the Commission as if trying a suit while investigating any matter referred to it, in respect of sub-clauses (a) to (f). It is obvious that the scope of the Commission under Article 340 is only advisory and much restricted as compared to the Commission appointed under Article 338 of the Constitution.

16. The first such Commission under Article 340 of the Constitution was appointed by the Central Government on 29.1.1953. It was popularly known as "Kaka Kalekar Commission" which was required to investigate the conditions of socially and educationally backward classes and difficulties under which they labour and to make recommendations as to the steps that may be taken by the Union or any State to remove these difficulties and to improve their conditions. The Commission submitted its report on 30th April, 1955. According to it, the relevant factors to be considered while classifying backward classes would be their traditional occupation and profession, percentage of literacy, general educational advancement made by them, the estimated population of the community and the distribution of various communities throughout the State or concentration in certain areas as well as social position which a community occupies in the caste hierarchy and its representation in the government service or in the industrial sphere. The causes for backwardness were shown to be traditional apathy towards education on account of social and occupational handicaps, poverty and lack of educational institutions in rural areas or to the persons living in inaccessible areas. This report was considered by the Central Government but certain faults were found in regard to the tests adopted by the Commission for identification of backward classess. The Central Government expressed the opinion that more systematic and elaborate basis was required to be followed for identifying backward classes. On August 14, 1961, the Central Government moved the State Governments stating, inter alia, that while the State Governments have discretion to choose their own criteria for identifying backward classes, in the view of Central Government it would be better to apply economic test than to go by the castes. It was also clarified that it would be open to the State Governments to draw its own lists for the purposes of Articles 15 and 16 of the Constitution of India and in the light of All India Lists drawn by the Union of India. Various State Governments appointed Commissions for identifying backward classes and issued orders to identify socially and educationally backward classes and reserving certain percentage of posts in their favour.

17. The Government of Bombay for the first time in the post-Independence era issued Resolution dated 1.11.1950 and made three different Schedules i.e. Schedule I for the Scheduled Castes, Schedule II for the Scheduled Tribes and Scheduled III for Other Backward Communities. In Schedule III in all 160 castes were shown as Other Backward communities. The said resolution was amended on 14.5.1954 and the list of Other Backward communities came to be described as Other Backward Classes and one more entry namely; Scheduled Castes converted to Buddhism was added by the Government Resolution dated 17.1.1958, thereby making a total of 161 castes under the Other Backward Classes. At the same time, a list of Vimochit Jatis and Nomadic tribes/ Sami-Nomadic Tribes was also published vide Government Letter dated 7.12.1956.

On 1.10.1962 the Government issued a circular and entry at serial No.161 under the Other Backward Classes was removed and 160 castes were retained under the Other Backward Classes for the old Bombay territory, whereas, for Vidharbha territory the said list was of 223 castes. For the Marathwade region, which falls under this Bench, the said list of Other Backward Classes contained 57 castes.

On 13th August, 1967, the Government issued a fresh resolution and published a list of Other Backward Classes for the entire State and the said list consisted of 180 castes. In due process, the said list reached the figure of 201 as revised on 17th August, 1984.

18. With the emergence of economic development in the post-Independence era, there occurred a caste-occupation dissociation and it increased over a period of time due to upswing in industrialization and affinity towards higher education. The mobility of persons belonging to various castes increased towards the urban areas and as a result, hereditary occupations were dissociated by these groups. When they settled in the urban areas, the caste-occupation nexus ceased to exist contrary to their brethren who were living in the rural areas. This was more so amongst the members of the upper and middle class amongst the Other Backward Classes, as they normally tend to move away from the traditional occupations especially when they regarded it as socially degrading and defiling. In such cases the shift was towards the job in what may be regarded as secular economic order even if they are less remunerative. Thus, a man may give up the traditional occupation of sheep-rearing, washerman giving up the traditional occupation of washing clothes or a barber giving up his job for a job of a clerk or even a peon or messenger in the government or in a private firm. It is sell settled that the employment in the Government confers prestige on a villager regardless of the labour of employment and the income. Over a period of time, urban employment became an important indicator of social status and every village house-hold desired to have one or more of its members employed in urban sector. Thus, the social fabric in the urban areas has little or no touch with the caste-occupation dynamics and the caste-related occupations even today remained relevant in the rural areas alone mainly on account of the fact that even after spread of education upto secondary or even graduation levels, mobility of villagers has been limited on account of lack of employment opportunities and inability to meet requirements of ever increasing population ratio.

19. From 201 castes so declared as belonging to the Other Backward Classes, the State Government deleted 25 castes and at serial No.176, Christians converted from the Scheduled Castes were included in the Other Backward Classes vide Government Resolution dated 13.2.1978.

20. The social order in the village is well known amongst the residents for years and for generations. Each group has sound knowledge of the social status, customs and traditions of the other group as they have grown up and lived together for generations and may be for centuries.

21. By an Order made by the President in 1979 under Article 340 of the Constitution of India, a Backward Class Commission for the second time came to be appointed as to investigate the conditions of socially and educationally backward classes within the territory of India and the said Commission was popularly known as "Mandal Commission". The terms of reference were :

(i) to determine the criteria for defining the socially and educationally backward classes.

(ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizen so identified.

(iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State and

(iv) to present to the President a report setting out the facts as found by them and making such recommendations as they think proper."

The Commission submitted its report on 31.12.1980. The Commission evolved in all eleven indicators grouped under three broad heads namely; Social, Educational and Economic for determining the social and educational backwardness. They are :

A. Social

(i) Castes/Classes considered as socially backward by others.

(ii) Castes/Classes which mainly depend on manual labour for their livelihood.

(iii) Castes/Classes where at least 25% females and 10% males above the State average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.

(iv) Castes/Classes where participation of females in work is at least 25% above the State average.

B. Educational

(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.

(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.

(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.

C. Economic

(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.

(ix) Castes/Classes where the number of families living in Kucha houses is at least 25% above the State average.

(x) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.

22. The Mandal Commission had allotted the points for each of the above indicators under three different heads (A) to (C). Under the first head "(A) Social", each indicator was allotted three points, second head "(B) Education" each indicator was allotted two points and third head "(C) Economic" each indicator was allotted one point, thus, making a total of 22 points. For the purpose of identifying the Other Backward Classes, the Mandal Commission was of the view that such classes or castes should secure more than 50% of these points. While agreeing with these indicators the Supreme Court, by and large, left it open to each of the State Governments to evolve appropriate indicators for identifying the Other Backward Classes.

23. In Volume No.2 of its report the Commission gave a list of State-wise backward classes identified by it. The report of Mandal Commission was placed before each of the House of Parliament and was discussed on two occasions - once in 1982 and again in the year 1983. No action was, however, taken on the basis of said report until the issuance of Office Memorandum dated 25th September, 1991. This resulted in wide-spread protest in certain States. Writ petitions were filed before the Supreme Court questioning the legality of the report. It was stayed, Another Office Memorandum dated 25th September, 1991, modifying the earlier Memorandum dated 13th August, 1990, regarding reservations for socially and educational backward classes in service under the Government of India was issued. Finally, the challenge was decided by the Apex Court in Indra Sawhney's case (cited supra).

24. In para 117 of its judgment, the Supreme Court stated thus:

"We are of the considered view that there ought to be a permanent body, in the nature of a Commission or Tribunal to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes can be made. Such body must be empowered to examine complaints of the said nature and pass appropriate orders. Its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefor. Even if any new class/group is proposed to be included among the other backward classes, such matter must also be referred to the said body in the first instance and action taken on the basis of its recommendation. The body must be composed of experts in the field, both official and non-official and must be vested with the necessary powers to make a proper and effective inquiry. It is equally desirable that each state constitutes such a body, which steps would go a long way in redressing genuine grievances. Such a body can be created under clause (4) of Art.16 itself - or under Art.16(4) read with Article 340 - as a concomitant of the power to identify and specify backward class of citizens, in whose favour reservations are to be provided. We direct that such a body be constituted both at Central level and at the level of the States within four months from today. They should become immediately operational and be in a position to entertain and examine forthwith complaints and matters of nature aforementioned, if any, received. It should be open to the Government of India and the respective State Governments to devise the procedure to be followed by such body. The body or bodies so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As suggested by Chadrachud, C.J. in Vasant Kumar (AIR 1985 SC 1495) there should be a periodic revision of these lists to exclude those who have ceased to be backward or for inclusion of new classes, as the case may be."

25. Pursuant to the above directions the Government of Maharashtra established a Committee on 15th March, 1993, which was converted into a Commission vide Government Resolution dated 19th May, 1995. The Commission consisted of Chairman (a retired Judge of this Court) and five other members - one of them being a Member Secretary and Director of Social Welfare Department. The State Government also issued Resolution dated 9th August, 1995, and without waiting for the recommendations of the Commission, increased the list of castes to be included in the Other Backward Classes from 201 to 307 purportedly following the recommendations of the Mandal Commission. Thus,it added 106 new castes in the Other Backward Classes. The Other Backward Classes Commission submitted its recommendations for including certain other castes in the Other Backward Classes and based on that the Government issued a resolution on 1st January, 2001 and added 28 new castes, thus, taking the total number of castes in the Other Backward Classes to 335.

25A. At this juncture, we may aptly refer to the speech of Dr. Ambedkar during the debate on the draft of the Constitution and more particularly, the scope of draft Article 10(3) regarding the meaning of the term "backward community", Dr. Ambedkar stated :-

"Somebody asked me : "What is backward community"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government."

Whereas, in the case of Balaji Vs. State of Mysore (AIR 1963 SC 649), the Supreme Court, on the scope of clause (4) of Article 15 of the Constitution, laid down the following principles :-

(a) Clause (4) of Article 15 is a proviso or an exception to Cl.(1) of Art.15 and to Cl.(2) of Art.29;

(b) For the purpose of Article 15(4) "backwardness" must be both social and educational. Though caste in relation to Hindus may be a relevant factor to consider in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test.

(c) Reservation made under clause (4) of Article 15 should be reasonable and it should not be such as to defeat or nullify the main Rule of equality contained in clause (1).

(d) A provision under Art.15(4) need not be in the form of legislation and it can be made by an executive order.

26. The caste "Thakar" was shown in the list of Other Backward Classes at serial No.111 in the Government Resolution dated 29th May, 1933, issued by the erstwhile Government of Bombay and the caste "Thakur" was shown at serial No.26 in the list of aborigines and hilly tribes in the said resolution. During the post-independence era the caste "Thakur" was shown at serial No.1 in the list of Scheduled Tribes and the caste "Thakar" was shown at serial no.142 in the list of Other Backward Classes in the Government Resolution dated 11.1.1950. The Scheduled Castes and the Scheduled Tribes (Modification) Order, 1956, had shown area restrictions for the Scheduled Tribe "Thakur" caste and the Government of Maharashtra made representations to the Central Government stating that the citizens belonging to this tribe had moved to other parts due to migration and their claim as belonging to the Scheduled Tribe could not be accepted beyond talukas/ districts as mentioned in the Presidential Order of 1956, though such persons genuinely belonged to the Scheduled Tribe. This fact is evident from the letter dated 28th July, 1974, addressed on behalf of the Chief Minister of Maharashtra to the Secretary to the Prime Minister. This ground reality appears to have been considered by the Parliament and therefore, the area restrictions came to be removed by the Presidential Order of 1976. Thus, entry by itself shows that all the persons belonging to the "Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar" caste are required to be classified as Scheduled Tribes in the State of Maharashtra irrespective of the taluka or district of their residence.

27. However, by the Resolution dated 8th July, 1982, the Government of Maharashtra listed the caste Thakar in the list of Other Backward Classes at serial no.200. Thus, there was some sort of contradiction between the list of Backward Class of Citizens issued by the State Government in the year 1982 and the list of Scheduled Tribes issued under the Presidential Order of 1976 under Article 342 of the Constitution of India in relation to "Thakur" caste. The entry at serial No.44 of the Scheduled Tribes List issued under the Presidential Order shows the caste "Thakur / Thakar, Ka thakur / Ka Thakar, Ma Thakur / Ma Thakar".

28. In the case of Pandurang Rangnath Chavan (supra), the competent authority issued a caste certificate in his favour stating that he belonged to Hindu Thakar caste - a scheduled tribe listed at serial no.44 of the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976. When the said certificate was subjected to verification by the Scrutiny Committee for the Scheduled Tribes, the Committee invalidated the caste claim and the caste certificate was directed to be cancelled. The Committee, however, did not stop there alone but instead proceeded further to declare that Pandurang Chavan belonged to "Thakar" caste which was one of the Other Backward Classes. Aggrieved by this declaration the claimant filed an appeal but in vain and therefore, he approached this Court by filing a writ petition. Relying on the judgment of Palghat Jilla Thandan Samodaya Samaj Vs. State of Kerala and others (1994(1) SCC 359) this Court held that:

(a) in view of the scheme of Articles 341 and 342 of the Constitution of India, the powers to include or amend any entry of the Scheduled Castes and the Scheduled Tribes (Amendment) Act, 1976 or any orders issued thereunder could be made only by following the procedure laid down in the said Articles and the State Government on its own cannot amend any such entry. It is required to approach the Central Government which, in turn, would place such a request before the Parliament for considerations and

(b) the Government Resolution dated 8.7.1982 declaring "Thakar" caste as belonging to the Other Backward Classes was liable to be cancelled.

29. In the case of Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another Vs. State of Kerala and another (1994 (1) SCC 359), on referring to its earlier decisions in the cases of Srish Kumar Choudhary Vs. State of Tripura (1990 Supp. SCC 220), B. Basavalingappa Vs. D. Munichinnappa (AIR 1965 SC 1269) and Bhaiyala Vs. Harikishan Singh (AIR 1965 SC 1557), the Supreme Court reiterated that

"Any amendment to the Presidential Order could only be by legislation. The Court could not assume jurisdiction and order an inquiry to determine as to whether the terms of the Presidential Order included a particular community or not. The State Government was entitled to initiate appropriate proposals for modification in cases where it was satisfied that modifications were necessary and, if after appropriate inquiry, the authorities were satisfied that modification was required an amendment could be undertaken as provided by the Constitution."

It further stated :

"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 plain effect of the Scheduled Castes Order, except as contemplated by Article 341, is valid, ........."

"It is not for the State Government or for this Court to enquire into the correctness of what is stated in the report that has been made thereon or to utilise the report to, in effect modify the Scheduled Castes Order. It is open to the State Government, if it so deems proper, to forward the report to the appropriate authority to consider whether the Scheduled Castes Order needs amendment by appropriate legislation. Until the Scheduled Caste Order is amended, it must be obeyed as it reads and the State Government must treat Thandans throughout Kerala as members of the Scheduled Castes and issue community certificates accordingly."

30. During the course of his argument the learned Counsel for the petitioner referred to the two subsequent decisions of the Supreme Court in Nityanand Sharma's case and Milind's case (supra). It was conceded by all the learned Counsel for the respective parties that the entry in the Presidential Order issued under Article 342 of the Constitution was final and therefore, any person belonging to the caste "Thakar or Thakur" has to be declared as belonging to the Scheduled Tribe as at present until the said list is amended by following the procedure laid down under the said Article.

31. Notwithstanding this constitutional mandate, it was conceded by all the learned Counsel for the respective parties that the Scrutiny Committee does have the powers to enquire whether the claimant belongs to "Thakar or Thakur" caste and in case the Committee, on perusal of the evidence and on hearing the concerned claimant, records a finding in the negative it would be competent for the Committee to invalidate the caste claim and cancel the caste certificate. The claimant of such a caste has to stand on his own feet and at the first instance he is required to prove his claim that he belongs to "Thakar or Thakur" caste and therefore, such an issue is required to be framed by the Committee. In case the Committee answers it in the affirmative it has no further powers other than to accept the claim of the claimant as belonging to the Scheduled Tribes notwithstanding the State Government resolution enlisting the said caste in the Other Backward Classes. In case the issue is answered in the negative the Committee has no further powers to give a declaration that the claimant belongs to "Thakar or Thakur" caste, a non-tribal group simply because there is another entry of the same nomenclature in the list of the Other Backward Classes as per the Government Resolution dated 8.7.1982. It was incompetent on the part of the Government of Maharashtra to issue the same resolution dated 8.7.1982 in respect of "Thakar" caste so as to classify it under the Other Backward Classes, in view of the mandate of Article 342 of the Constitution of India and its interpretations as set-out by the Apex Court from time to time. This Court rightly set-aside the Resolution dated 8.7.1982 in Pandurang Chavan's case.

32. The scrutiny Committee has limited role to investigate whether the claimant before it belongs to "Thakur or Thakar" caste and on that basis it may take steps as are mandated by law laid down by the Supreme Court in Kum. Madhuri Patil's case (AIR 1995 SC 94). On adjudication if the Committee records a finding in the affirmative, it has to certify that the claimant belongs to the Scheduled Tribe and it cannot venture into any further inquiry into such a claim. In the case at hand, the Committee recorded a finding that the petitioner had claimed to belong to Thakar Scheduled Tribe and the claim as subjected to verification by the Committee which recorded a finding on adjudication of this claim that the petitioner belonged to "Hindu Thakar" caste which falls in the Other Backward Classes. The petitioner has challenged this finding on the ground that once he was found to be belonging to the "Thakar caste" it was incompetent for the Committee to give any further declaration regarding his social status and to hold that the claimant belonged to "Hindu Thakar" caste, - a non-tribal group. If the Committee was satisfied that the claimant did not belong to Thakar caste, it had the powers to give a declaration accordingly. It certainly did not have the powers to give a further declaration and that too contrary to the petitioner's claim that he belonged to Hindu Thakar caste. These submissions have considerable force and we agree that once the Committee recorded finding that the claimant belongs to Thakar caste it had no jurisdiction to give any further declaration and the only course available to it in such cases was to validate the claimant's social status as belonging to the Scheduled Tribe (entry no.44). It is for these reasons that the impugned order is contrary to law and the Scrutiny Committee has fallen in serious error in denying the petitioner's Scheduled Tribe claim. The said order is, therefore, unsustainable and it requires to be quashed and set-aside.

33. The petitioner therefore, succeeds and his claim that he belongs to "Thakur" Scheduled Tribe is required to be upheld.

34. We now move to the next issue. The Government having realised that some persons belonging to the non-tribe groups were seeking the benefits of the Scheduled Tribes by manipulating their names or castes or by obtaining such certificates surreptitiously or fraudulently from the concerned authorities, constituted a Committee of eight members vide Resolution dated 18-6-1983, solely to ensure that the benefits available to the Scheduled Tribes were not hijacked by the persons belonging to the non-tribal groups and real tribals were not deprived of the constitutional benefits available to them. The said Committee, after exhaustive studies, submitted a report to the State Government. The said report in respect of the castes "Thakar, Thakur, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar, etc;" has been attached to the order passed on 9-3-2000 in this petition. This report of the Experts Committee does show that some of the persons belonging to the castes like Rajput, Pardeshi, Jat, Bhati Thakur, Bramha Thakur were misusing their caste certificates and were claiming that they belong to the Scheduled Tribe. The Committee, therefore, suggested remedial measures and pointed out that apart from the Thakar/Thakur Scheduled Tribe community, there existed in various parts of the State a higher caste of the same title, nomenclature and synonymous but different from Thakur/Thakar Scheduled Tribe groups. This report was accepted by the State Government. This Court in the case of Maharashtra Adivasi Thakur Jamat Seva Mandal Vs. State of Maharashtra and others (1986 Mh.L.J. 1021) and Tanuja d/o. Madanlal Rajpal Vs. State of Maharashtra and others (1989 Mh.L.J. 99), took a judicial note of the said report and concluded that the higher caste of the nomenclature "Thakur" did exist in the State of Maharashtra as a separate and distinct from the Scheduled Tribe "Thakur" caste. The decision of this Court in Maharashtra Adivasi Thakur Jamat Seva Mandal's case (supra) has been confirmed by the Apex Court in Ganesh Gulabrao Survase Vs. State of Maharashtra (AIR 1997 SC 2333) and it would be useful to reproduce the following observations :

3. ..... Admittedly, the appellant "Thakur" "by caste - a forward caste. His grand father was shown as "Thakur" but not as "Ka thakur" or "Ma Thakur". In Maharashtra "Ma Thakur or Ka Thakur"are described as Scheduled Tribe. The appellant, therefore, claimed the status of Scheduled Tribe and made an application to the authorities for issuance of the caste certificate. After due inquiry the Scrutiny Committee constituted negatived the claim of the appellant for the status of Scheduled Tribe. The appellant filed writ petition in the High Court which observed that the Committee has minutely enquired into findings."

"5. ..... It is true that as pointed out by the Supreme Court that each case is required to be examined under the facts and circumstances of the case. The notification of the President under Article 342 of the Constitution under the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, is conclusive and final. There are catena of decisions of this Court holding that the Court cannot examine to find out the case of the party, the basis of the certificate issued. The limited area the Court can survey is whether the caste mentioned in the Presidential Notification would be applicable to the claimant or not. Under these circumstances we do not think that the High Court has committed any error of law warranting interference."

35. In Writ Petition Nos.968 and 1239 of 1997 a Division Bench of this Court (Coram: A.A.Desai and S.S.Parkar, JJ) also recognised the existence of distinct Thakur caste from the Thakur Scheduled Tribes and upheld the rights of the Scrutiny Committee to investigate the claim so as to ascertain whether the claimant really belongs to "Thakur" Scheduled Tribe and it observed thus :

"In the instant case, undisputedly besides the certificate indicating "Thakar and Thakur" the petitioners have not brought anything on record to indicate that they have any affinity, proximity or nearness with the community shown at Entry No.44 of the Scheduled Tribes Order. Furthermore, the learned Counsel for the petitioners could not assert that Thakar and Thakur are the only tribals and no Thakar or Thakur could be in any manner a non-tribal. Admittedly, Thakar and Thakur could also be non-tribals. The Entry, as envisaged, no doubt, demanded a higher responsibility to be discharged by the claimant to establish his identity with the Entry as envisaged by the Scheduled Tribe Order."

36. As noted earlier, the erstwhile Government of Bombay vide its resolution dated 29-5-1933 had declared 125 castes in Other Backward Classes and at serial No.111 "Thakur" caste was shown, whereas, at serial No.26 in the list of aborigins and hilly tribals "Thakar" caste was shown. In the subsequent resolution dated 23-4-1942 at serial No.173 in the list of intermediary communities, "Pardeshi Thakur" was shown at serial No.173, whereas at serial No.186 "Rajput" caste was shown. "Thakur" caste was shown at serial No.116 under the Other Backward Castes. Similarly, "Thakur" caste was shown at serial No.26 of the Hilly tribes. By and large the same position continued. Pursuant to the advent of the Bombay Reorganisation of States Act, 1960, the modified list of Other Backward Classes, Vimukt Jatis and Nomadic Tribes came to be published by the State Government. At serial No.156 was shown "Thakar" caste in the list of Other Backward Classes. This entry was deleted by Government Resolution dated 9th December, 1977 and was incorporated by the subsequent Government Resolution dated 8th July, 1982, at serial No. 200.

37. The erstwhile Government of Bombay vide its Resolution dated 5-2-1925 had defined "backward class" as all those except Brahmins, Prabhus, Marwaris, Parsis, Baniyas and Christians. However, subsequently the said concept of "backward class" acquired a different meaning and it was bifurcated into the Scheduled Castes, Scheduled Tribes, Vimochit Jatis, Nomadic Tribes and Other Backward Classes.

38. The literature like Bharatiya Sanskruti Kosh, Manav Vishwakosh, District gazetteers of the districts of Marathwada as well as Vidharba regions and the Experts Committee's report submitted to the Government of Maharashtra in 1983 together go to show that there existed a separate and distinct higher castes of Rajput, Pardeshi and the persons belonging to these castes were addressed as "Thakur". This was in fact a title to address such persons belonging to Rajput and Pardeshi castes. There is enough evidence to show that the Pardeshi caste is an offshoot of Rajput caste and both these castes have no proximity with Thakar/Thakur Scheduled Tribe. However, as noted by the Experts Committee in its report submitted to the State Government in 1983, some persons belonging to Rajput and Pardeshi castes (a non-tribal group) were obtaining caste certificates as belonging to "Thakur" caste and seeking the benefits of the Scheduled Tribe. The State Government was also aware of this grass-root social reality and the need for remedying the same. Instead of approaching the Central Government for necessary amendment in the Presidential Order to be made under Article 342 of the Constitution of India, it proceeded to issue the Resolution dated 8-7-1982 and listed "Thakar" caste at Serial No.200 in the Other Backward Classes. It was necessary for the State Government to approach the Government of India and request for amendment to the list of Scheduled Tribes issued under the Presidential Order of 1976 and more particularly at entry no.44 as applicable to the State of Maharashtra. Such a course of action can be adopted by the State Government even now and more so in view of the Expert Committee's report regarding existence of a higher caste by name "Thakar or Thakur" as distinct from "Thakar/Thakur" Scheduled Tribe. Once the State Government has accepted the said report there is no reason as to why the State Government should not take further steps to approach the Government of India. This will be certainly for serving the welfare of genuine Scheduled Tribes rather than allowing the constitutional benefits to be hijacked by false claimants or the claimants who certainly belong to higher castes and do not fall in the category of Scheduled Tribes. The legal position reiterated by the Apex Court in Palghat Jilla Thandan Samudhaya's case (supra) is clear and the State Government is required to follow such a course in the larger social interests.

39. Articles 341 and 342 of the Constitution of India pertain to the Scheduled Castes and the Scheduled Tribes, respectively and so is the Commission under Article 338 of the Constitution. The Commission to be constituted under Article 16(4) read with Article 340 of the Constitution as per the law laid down in Indra Sawhney's case (supra) must, therefore, be deemed to be the Commission in respect of Other Backward Classes i.e. other than Scheduled Castes and Scheduled Tribes. It means that such a Commission cannot be the Commission for the Other Backward Classes alone in the State of Maharashtra and it has to be a Commission for Vimukt Jatis, Nomadic Tribes as well as Other Backward Classes, etc.

40. In the resolution dated 23rd April, 1942, at serial No.75 in the Other Backward communities, "Lamhani" was listed and at serial No.127 "Vanjari" was listed. In the subsequent resolution dated 1-10-1950 issued in the post-Independence era for the first time the caste "Lamhani" was shown at serial No.89 and the caste "Vanjari" was shown at serial no.155 under the list of Other Backward Communities. Two additional groups namely; Vimochit Jatis and Nomadic/Semi Nomadic Tribes were listed in the Scheduled Castes, Scheduled Tribes and Other Backward communities. The caste "Lamhani" which was earlier listed in the Other Backward Communities came to be listed as Vimochit Jati at serial no.5, whereas, the caste "Vanjari or Vanjara" including "Lad Vanjari/Vanjara" remained Other Backward Classes. The Government of Bombay had created a post of Officer on Special duty for unification of lists of Other Backward communities and the said Officer was directed to take an extensive survey of the issues including the criminal tribes and Nomadic tribes throughout the State as also to study their living conditions, ascertain their felt needs and find out ways and means to meet these needs and to recommend uniform list of all communities in Vimochit Jatis as well as Nomadic/Semi-nomadic tribes. The Officer submitted his final report and the State Government noted synonym of these different tribes e.g. for Lamhan synonyms were accepted as Banjaras. Kachakiwale Banjaras, Lamhan Banjaras and Lambadas. When the list of Other Backward Classes was published vide Government Resolution dated 13-10-1967, the community of Lamhani/Lambada was removed from the said list while the caste "Vanjari" continued to be in the list of Other Backward Classes this was so in the list published on 17-8-1994. The relevant entry was "Vanjari and Vanjara". This position continued till the decision of this Court in the case of Ganpat Sankhe (supra).

41. Ganpat Sankhe was the student of AES High School at Palghar in Thane district and in the school record his caste was shown as "Hindu Vanjari". He moved to Mumbai for employment and came to be appointed in the State Government service. In February, 1988 (Sic), he applied to the Additional Chief Metropolitan Magistrate, Bandra, for grant of caste certificate and a certificate showing that he belongs to "Banjara" caste came to be issued. On the basis of this certificate he made an application to the State Government requesting it to show his caste as "Banjara" in the service book vide his representation dated 5th May, 1980. However, on 19th November, 1983, he received a memorandum from the Under Secretary in the Rural Development Department, Mantralaya, pointing out that his school certificate on one hand showed him to be of Hindu Vanjari caste, whereas on the other hand, the Magistrate's certificate showed him to be of Hindu Banjara denotified tribe. He was, therefore, called upon to produce the Magistrate's certificate which he could not do. By another Memorandum dated he was called upon to obtain a certificate from the competent authority at Palghar that he belongs to Banjara community and the Tahsildar, Palghar issued such a certificate on 15-3-1986. He was informed that the powers of the Metropolitan Magistrate to issue caste certificate have been revoked from 1-3-1986 and he was, therefore, asked to appear before the Collector, Bombay. On 14-4-1986 he, therefore, filed a writ petition before this Court seeking a declaration that the refusal of the State Government to act on the certificate issued by the Additional Chief Metropolitan Magistrate, Bandra, was bad in law and for other consequential reliefs.

42. A learned Single Judge of this Court admitted the said writ petition of Ganpat Sankhe and restrained the State Government from reverting the petitioner from his post of Desk Officer pending disposal of the writ petition. The State Government, therefore, filed Writ Appeal No.924 of 1986 (State of Maharashtra Vs. G.P. Sankhe) which came to be decided on 24th July, 1991 by the Division Bench by framing the following question :

"Is Vanjari (Other Backward Class) a synonym of Banjara (Notified as Vimochit Jati)?"

The Division Bench referred to the extracts from the booklet titled "Welfare of the Backward Classes", extract from the report of Criminal Tribes Act and the Enquiry Committee appointed by the Government of Bombay in October, 1937, the letter dated 27-4-1956 addressed by the Joint Secretary to the Government of Bombay to the Secretary to the Government of India, in the Ministry of Home affairs and the extract from the Maharashtra Government Gazetteers, 1968 in the book titled as "Maharashtra - land and its People". Reference was also made to two publications - Bharatiya Sanskriti Kosh, 1974 and the booklet published by the Directorate of Census Operations. The Government in support of its appeal had submitted that the caste "Vanjari" is distinctly separate from the caste "Banjara or Banjari" and Vanjaris are Other Backward Class, whereas, Banjara - a wandering community belongs to the Banjara denotified Tribe. It was also pointed to the Court that the persons belonging to Vanjari caste in Thane district specially from Palghar and Dahanu have taken the benefits of the similarity between the words "Banjari" and "Vanjari" and had created an impression that both the castes were one and the same. Thus, they were successful in getting the caste certificates as Banjaras to enable them to take advantage of the reservation facilities available to the denotified tribes. The state Government had, therefore, issued a circular giving directions to cancel such certificates. This Court was, however, persuaded by the authorities of ethnographic literature and Gazetteers as referred to hereinabove and held that Banjaras - Banjari on one hand and Vanjari on the other are the changed terms and the people of these communities are also known as Lamhani, Lambadi, etc. In para 27 of its judgment, the Division Bench stated as under :

"Apart from authority, it is difficult to treat Vanjari as not being a synonym of Banjara, especially when Banjari is treated as being a synonym of Banjara. There is substantial identity in pronunciation. Written in English the distinction between Banjari and Vanjari lies only in the first letter. Written in the Devnagari script, the distinction lies only in the oblique within the circle in the letter uy¿ ub¿

Based on this decision the Government of Maharashtra issued Resolution on 23rd March, 1994 and notified Vanjari caste as Nomadic tribe.

43. The learned Counsel representing all the respective parties before us as well as the learned Amicus Curiae and the learned Additional Government Pleader agree before us that Banjara/Banjari is different from the caste Vanjara/Vanjaris. They submitted that the opinion recorded by this Court in the case of Ganpat Sankhe is against the stark social reality in the State of Maharashtra. They submitted that Vanjari is a distinct community as compared to the Banjara Nomadic tribe. Banjaris or Banjara is a wandering tribe and therefore, the Government of Maharashtra rightly included the same in the Vimukta Jatis. In addition, the social, cultural and linguistic factors between Banjaras and Vanjaras are distinctly different. Vanjari is a progressive community mainly engaged in farming and during the post-Independence era, it is comparable to a higher caste as any other caste like Maratha in the State of Maharashtra. These submissions apart, the question which falls for our consideration now is whether the synonymity between the two communities as opined by this Court or any Court could change the social status or social fabric to such an extent that one could be merged with the other by such a view on the basis of synonymity. If the answer to the issue is in the negative it would be obvious that the decision of this Court in Ganpat Sankhe's case ceases to be a good law any more.

44. Let us, therefore, go first to the Constitution Bench decision of the Supreme Court in the case of B. Basvalingappa's case (supra) on this issue. While referring to the provisions of Articles 341 and 342 of the Constitution of India it was observed that :

"It may be accepted that it is not open to make any modification in the Order by producing evidence to show that (for example) that though caste A alone is mentioned in the Order caste B is also a part of caste A and, therefore, must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order. Ordinarily, therefore it would not be open to give evidence that the Voddar Caste was the same as the Bhovi caste specified in the Order for Voddar caste is mentioned in brackets after the Bhovi caste in the Order."

Another Constitution Bench in a later decision in Bhaiylal's case (supra) did not accept the plea of the appellant that although he was not Chammar, as such he could claim same status by reason of the factor that he belongs to Dhor caste which is a sub-caste of Chammar.

45. In the case of Parsaram Vs. Shivcharan (AIR 1969 SC 597) after referring to two earlier Constitution Bench judgments in Basavlingappa's case and Bhaiylal's case, the Apex Court stated :

"These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazetteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether mochi and chamar in some parts of the State at least meant the same caste although there might be some difference in the professions followed by their members, the main difference being that Chamars skin dead animals which mochis do not. However, that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a mochi, he could still claim to belong to the scheduled caste of chamars and be allowed to contest an election on that basis."

46. In the case of Palghat Samadaya Samiti (supra), the Three-Judges Bench of the Supreme Court held that neither the State nor the Court could inquire into or lead evidence relating to any claim as belonging to the Scheduled Caste in any entry of the Scheduled Castes and Scheduled Tribes Order and it has to be applied as it stands until the same is amended by appropriate legislation.

47. In the case of Nityanand (supra), the three-Judges Bench of Apex Court stated in para 15 as follows :

"It is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule of Tribes or Tribal community or part of it or group in any tribe or tribal community for the State, District or Region and this declaration in conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or to include in or substitute any caste, tribe, etc. It would thus be clear that for the purpose of Constitution. "Scheduled Tribe" defined under Article 366(25) as substituted by "sic" and the Second Schedule therein are conclusive. Thus, the evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe was in fact included in the Schedule concerned. The Court is devoid of powers to include or exclude from or substitute or declare synonyms to be the Scheduled Caste or Scheduled Tribe or part thereof or groups....."

48. In a recent decision in the case of State of Maharashtra Vs. Milind (supra), the Constitution Bench while dealing with this aspect of Court's power to add or delete from the Schedule under Articles 341 and 342 of the Constitution, ruled thus :

"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 Order issued under Articles 341 and 342, particularly so when in clause (2) of the said Articles it is expressly stated that such Orders cannot be amended except by law made by the Parliament. The power to include or exclude, amend or alter the Presidential Order is expressly and exclusively vested with the Parliament and that too, by making a law in that regard. The President has the benefit of consulting States through Governors of States which have the means and machineries 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 the Parliament who is in a better position to know, having means and machineries unlike Courts, as to why a particular caste or tribe is to be included or excluded by law to be made by the Parliament. Allowing the State Government or Courts or other authorities to hold enquiry as to whether a particular caste or tribe should be considered as one included in the Schedule of Presidential order when it is not so specifically included. ... In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward and claiming to be covered by the Presidential Order issued under Articles 341 and 342. That apart, when no other authority other than the Parliament and that too, by law alone can amend the Presidential Orders neither the State Government nor any authority can assume jurisdiction to hold enquiry and take evidence to declare that a caste or Tribe or part of a group within caste or tribe is included in the Presidential Order in one entry or the other, although they are not expressly and specifically included. A Court cannot hold an inquiry and amend the said Presidential Order for the good reason that it has no powers to do so... It is not possible to hold that either an inquiry is permissible or any evidence can be led in relation to the particular caste or tribe to say whether it is included within the Presidential Order when it is not so expressly included."

49. Thus, what has been laid down as the law for the Schedules published under Articles 341 and 342 of the Constitution must be equally made applicable to the castes/groups enlisted under the Other Backward Classes, sofar as the court's powers are concerned. It must be held that a court of law has no powers to decide similarity or synonyms or to lead evidence on this issue so as to record a finding that caste "A" is sub-caste or is the same of synonyms of sub-caste "B". It is for the state Government on the basis of the recommendations of the competent Commission/Committees of experts to alter such entries and it is not within the powers of the Court. Following the law laid down by the Apex Court in Milind's case (supra), the view taken by this Court earlier in Ganpat Sankhe's case is no more a good law and therefore, the declaration that Vanjari caste is a synonym of "Banjari/Bajara" tribe must cease to exist any further.

While on this issue we are reminded of the view expressed by Justice Krishna Iyer (as His Lordship then was for the Kerala High Court) in the case of A. Yousuf Rawther Vs. Sowramma (AIR 1971 Kerala 261) in the following words :

"Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture - law is largely the formalised and enforceable expression of a community's cultural norms - cannot be fully understood by alien minds."

50. The Other Backward Classes Commission constituted by the State Government pursuant to the directions of the Supreme Court in Indra Swahney's case consists of six members with a retired Judge of this Court as its Chairman and the Director of Department of Social Welfare as its Member Secretary. For any expert body it is desirable that the number of such members is not even. The State of Maharashtra has been divided in six revenue divisions as at present and if one member from each region is nominated as a Member of the said Commission, membership will go to six plus the Director - Department of Social Welfare as its Member Secretary. The Chairman of the Commission may also represent one of the revenue divisions. It would be, therefore, desirable for the State Government to enlarge the membership of the Commission from six to seven.

51. The State Government is also required to devise the procedure to be followed by the Commission and this can be done by framing Rules for appointment of Members, their tenure, allowances and other terms and conditions; the procedure to be followed by the Commission to receive evidence, appoint subcommittees of experts, if required. We are informed that no such rules have been framed as at present by the State Government. As the Commission so constituted is deemed to be the Commission under Article 16(4) read with Article 340 of the Constitution, the rules so framed must meet the requirements of law.

52. It has come on the record that the OBC Commission has accepted the following indicators for classifying Other Backward Classes. In this regard, the Supreme Court in Indra Sawhney's case observed thus :

"There is no law or statutory instrument prescribing methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes/groupings, more particularly when Art.16(4) seeks to ameliorate social backwardness. ... Indeed there is no such thing as a standard or model procedure/approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the Court has no say in the matter. The only object of the discussion in the preceding para is to emphasise that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class they too can be treated as backward."

53. The Supreme Court also considered the question whether "backwardness" contemplated under Article 16(4) of the Constitution is "social or educational backwardness" or whether it is both and economical backwardness. In Balaji's case the Supreme Court had assumed that the backwardness of citizens contemplated by Article 16(4) was the same as socially and educationally backward class, Scheduled castes and Scheduled Tribes mentioned in Article 15(4). However, in Indra Sawhney's case the Supreme Court concluded that the backwardness contemplated by Article 16(4) is mainly social backwardness and it would not be correct to say that the backwardness under Article 16(4) should be both social and educational. It also noted that even Mandal Commission had given precedence for social backwardness over others, inasmuch as, out of 22 points 12 points were fixed in the indicators in social category. The social backwardness, it observed, leads to educational and economic backwardness and therefore, no objection could be taken to the validity and relevancy of the criteria adopted by the Mandal commission for identifying Other Backward Classes.

54. The Commission appointed by the State Government has stipulated the following indicators for identifying the Other Backward Classes.

umeceËpk :

D. Dme mxbi_ ºÈeèÈel hgzÔexeèÈe cpgjr¢s (µ|²eps¢ Ñflel, #jiglr kecel, kej×eeÞÈel Ëkxbe Flj Âce¢r bÔee_ltv 183 Ëobmxehs

y. Dme mxbi_ ºÈel jeºÈ mjemjrhs

k. Dme mxbi_ ºÈel 50 J''Èehsx

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F. Dme mxbi_ ºÈel me

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G. Dme mxbi_ ºÈel mjemjr ceËmk kåJgxËyk GÓhÄe Ñe|jr Yeiel . 5000 èÈe Del b ióecr²e Yeiel . 1500 èÈe Del De|s.

T. Dme mxbi_ ºÈel 40 J''Èehsx

These indicators have also been allotted points by the State OBC Commission. The total points come to 16. Any caste/class identified to be included in the Other Backward Classes ought, therefore, to receive 8 or more points i.e. 50% or more points.

55. Surprisingly when the Mandal Commission had listed four indicators under the social category, the State OBC commission has adopted only three indicators and indicators no.1 and 2 adopted by the Mandal Commission have not been followed or adopted though they are more relevant in the present social context. All the three indicators under the social category adopted by the Commission, in our considered opinion, are irrelevant in the present social scenario and as per the law laid down by the Apex Court, it is mainly the social backwardness which is relevant to identify Other Backward Classes. Similarly, both the indicators adopted by the OBC Commission in the category of Education are also not in keeping with the indicators followed by the Mandal Commission. Indeed, these indicators are irrelevant for identifying the classes/castes as socially and economically backward classes.

In the category of "Economic indicators", the Mandal Commission had adopted four indicators and without considering the aspect of monthly income in urban and rural areas for fixing such indicators. The second indicator under the category "Economic", in our opinion, as adopted by the OBC Commission is also irrelevant.

It is well known that in rural Maharashtra, irrespective of the castes, girls are married at the age of 15-17 in or about 70% cases. This general belief is supported by the official figures published by the Ministry of Health, Government of Maharashtra. It is thus obvious that the existing age of marriage below 16 years for the girls in the rural areas cannot be a proper indicator for identifying the Other Backward Classes or the castes to be included in this category. We must also keep in mind that amongst the Muslims the age of puberty is 15 years and more than 80% of the girls are married at this age. This is true in respect of entire rural population irrespective of the castes or religion. This indicator adopted by the Commission cannot be a justifiable indicator. We believe that some of the following indicators may be more realistic and they may serve as a guideline for the Commission in future.

A. Social

i. Social similarity with the Scheduled Castes and the Scheduled Tribes.

ii. Castes/Classes considered as socially backward class by others.

iii. Castes/Classes mainly dependent on the manual labour for their livelihood and such manual labour does not include self-farming (A farmer who toils for himself or a tiller who cultivates his land will not obviously fall in this category).

B. Educational

iv. Castes/Classes where children are not admitted even in the primary schools.

v. Castes/Classes where the number of children in the age-group of 5-15 years who never attended the school is at least 25% above the State average.

vi. Castes/Classes where the rate of students drop-out in the primary school is at least 25% above the State average and

vii. Castes/Classes amongst whom the proportion of matriculate is at least 50% below the State average.

C. Economic

viii. Castes/Classes where the number of families living below poverty line is at least 50% below the State average.

ix. Castes/Classes where landless families are above 50%

x. Castes/Classes where the number of families living in Kachha houses is at least 25% above the State average.

56. We also deem it appropriate to set-out the points to be allotted for each indicator under the three different heads i.e., social, educational and economic. The indicators under the first head i.e. social should have three points each, second head i.e. educational should have 2 points each and under the third head i.e. economic 1 point each. Thus, making a total of 20 points. For identification of a class/caste to be included in the socially and economically backward classes, it would be necessary to score 50% i.e. 10 points or more.

57. It is an established position in law that the recommendations of the Commission are subject to judicial review by this Court. However, we do not deem it expedient to invalidate the recommendations of the OBC State Commission, in entirety, on the basis of which Resolution dated 1-1-2001 has been issued by the State Government adding 28 more castes to the existing Other Backward Classes. In any case, there is no justification to include in the Resolution two castes namely; Yellam (at serial No.333) and Nirali (at serial No.320). The other castes shall certainly be subject to the review to be undertaken by the Commission.

58. In K.C. Vasantkumar's case (supra). His Lordship The Chief Justice of India (Y.V. Chandrachud, J. as then he was) observed:

"In sofar as Other Backward Classes are concerned two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education as they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backward class and they should satisfy the "means test" as the State Government may lay down in the context of prevailing economic conditions."

In the case of State of Maharashtra Vs. Kum. Tanuja (supra) the Apex Court stated :

"The State has every right to recognise a particular community in a particular manner but the same should be done for good reasons and after application of mind to all the relevant factors. Such a decision of the State must be specific and cannot be left to be inferred from surrounding circumstances nor can such a decision be based on irrelevant materials."

59. During the last 50 years of Independence, a number of social groups who were identified by castes have made progress socially and educationally to a great extent on account of economical advancement. Their representation on account of spread of higher as well as technical education has increased substantially in the government service as well as public and private sectors. They have moved not only to the urban or metropolitan areas but indeed they have crossed borders of our nation in their quest for professional/educational/financial betterment. The trade and industry has also contributed its might in the economical upliftment of these classes, some of whom are presently included in the Other Backward Classes e.g. castes like Gurav, Gavali, Gavandi, Hatkar, Jhaveri, Jangam, Koli Suryawanshi, Koli, Koshti, Kumbhar, Kasar, Shimpi, Panchal, Phulari, Rangari, Sarvade, Sonar, Tambat, Bhavsar, Sutar, Teli, Mali, Kunbi, Bhandari, Kathar, Momin, Yadav/Ahir Tamboli, Lohar, etc and they do call for review by the Commission as has emerged from the arguments advanced before us.

It is, therefore, high time that the Commission engages itself in reviewing the entire list of Other Backward Classes and submit its recommendations to the State Government in a phased manner and over a fixed period of time. The Commission is invested with such powers in view of the law laid down by the Apex Court. The indicators suggested by us in the above part of this judgment are only illustrative and not exhaustive and the Commission may evolve some additional relevant indicators or accept the ones we have suggested so as to take a review or to include in or exclude from the list of Other Backward Classes as at present.

60. We also wish to say something about the procedure to be adopted by the Commission while formalising its recommendations to the State Government for inclusion or exclusion of the castes in or from Other Backward Classes. It appears from the report submitted before us that the Commission has, prima facie, considered the reactions or opinions of some selected members of particular castes and such opinions or reactions cannot be treated to be realistic in all cases especially when these very members are keen to see that their castes should be included in the Other Backward Classes. We, therefore, feel that the reaction of other social groups in the same village regarding particular castes to be included in or excluded from the list of Other Backward Classes is of prime importance. The Supreme Court in no uncertain terms has emphasised that the entire population as such is required to be considered for identifying Other Backward Classes. The identification process, therefore, cannot be based on a survey of selected few families in a corner of a taluka. We have noted that the Commission has done so in some cases.

61. India is the largest democracy in the World. By the 73rd Amendment to the Constitution Part XI about the Panchayats has been incorporated thereby providing for a three-tier system of Panchayat Raj, Village Panchayat is the grass-root governing body under the taluka level Panchayat and the third layer is at the district level, Village level panchayat is a vibrant local-self government elected body which is familiar with the social status almost of every family of that village and the opinion of such a village panchayat or Gram Sabha will be a near-true reflection of the social status of a particular class/caste. We, therefore, suggest that when the Commission undertakes the review of the existing castes listed in the Other Backward Classes or it considers inclusion of any other caste or group in the said list of Other Backward Classes, the view of the Gram Sabha/Gram Panchayat is certainly considered. For this purpose, respective village panchayats are required to be called upon to submit their views on a particular caste for being included, retained or excluded or added in the list of OBCs. The opinion of the village panchayat or Gram Sabha be thereafter submitted to the taluka panchayat which in Maharashtra is called as Panchayat Samiti which would consider the same and submit its opinion to the district level panchayat i.e. Zilla Parishad. The Zilla Parishad may also give its views either accepting or otherwise the opinions of the lower panchayats and submit it to the State Commission. This material should be treated by the Commission as preliminary assessment available at its disposal and thereafter it may adopt any further procedure as an expert body in finalising its recommendations on the basis of the indicators suggested above or formulated by it afresh.

We have no hesitation in our mind to record our opinion that without the involvement of these panchayats there cannot be any realistic recommendations of the Commission for inclusion or exclusion of the castes from or in the list of OBCs.

62. Once the Commission submits its recommendations to the State Government after taking the review of the existing castes for retention in the list of OBCs or for inclusion of new castes in the said category, the issue that arises for our consideration is whether such a report is required to be laid before both the Houses of the Legislature before it is accepted or acted upon by the State Government. The report of the Commission constituted under Article 338 of the Constitution is placed before the Pariliament. The Supreme Court ruled in Indra Sawhney's case that the commission to be constituted for OBCs would be a commission under Article 16(4) read with Section 340 of the Constitution. The claims of social status and more so because of the constitutional guarantees provided under Articles 15 and 16 as well as Chapters IX and IXA have great relevance for the welfare of the citizens belonging to the OBCs. The representatives of the people either in the panchayats, Nagar Panchayats or the Assembly must be involved in such codification in keeping with the true democratic values. If the report submitted by the Commission is placed before both the Houses of Legislature, it would provide an opportunity to the Members of the Legislative Assembly and Council to examine the recommendations submitted vis-a-vis social realities. Thus, placing these reports before the Legislative Assembly/Council would provide for an opportunity to the elected representatives to express their opinion. We, therefore, deem it necessary that these reports are laid before both the Houses of the State Legislature from time to time before they are acted upon by the State Government.

63. It was pointed out during the course of arguments by the learned Amicus Curiae that the State Government has failed to take adequate steps in implementing the law laid down by the Supreme Court in Indra Sawhney's case for identifying the creamy-layer amongst the Other Backward Classes. It was also submitted that though to some extent steps have been taken for identifying these creamy layers, no effective steps have been taken to exclude them from the benefits of all the reservations provided under the Constitution. It has been more pointedly argued that though the State Government has taken some steps for excluding these categories from the benefits of reservation in admission to the professional courses like Medicine, Engineering, etc; the State has not taken the required steps for their exclusion from reservation as applicable to the appointments under the State or the posts reserved for OBCs in the Panchayats or Municipal Councils. Articles 243D(6) and 243T(6) of the Constitution of India provide for making a provision for reservation of seats in Panchayats and Municipalities in favour of Backward Classes of citizens. However, the creamy layer amongst the OBCs have not yet been excluded from the benefits of such reservation. It has been pointed out that the State Government as well as the State Election Commission have failed to take effective measures in this regard.

64. The Supreme Court has clearly stated in Indra Sawhney that the creamy layer amongst the socially and economically backward classes are required to be excluded from the benefits of reservation. Any backward class or some members of such a class under clause (4) of Article 16 of the Constitution are far advanced socially which in the context of reservation necessarily means economically and also educationally. The link between them and the remaining members of the same class is snapped. They would be misfit in the said backward class. After excluding them alone, would the class be a compact class. In fact such exclusion benefits largely the same backward class.

65. In the case of Ashok Kumar Thakur Vs. State of Bihar (AIR 1996 SC 75), the exclusion of creamy layer from the Other Backward Citizens was again considered by the Apex Court in furtherance of its earlier decision in Indra Sawhney in which case there was agreement amongst eight out of nine Judges. It held that the occupants of the posts like IAS, IPS and Officers of All India Services rise quite high socially and such persons could no longer be socially disadvantaged. Their children get full opportunities to realise their potential and are in no way handicapped in the social life. Their income is also such that they are above wants and therefore, it was but logical that the children of such socially and economically advanced persons are not given the benefits of reservation. The Supreme Court while considering the validity of Office Memorandum dated 8-9-1993 in Ashok Kumar Thakur's case (supra), held that the children of the following categories are excluded from reservation as creamy layer.

1. The son or daughter of the President of India, the Vice-President of India, the Chief Justice and Judges of the Supreme Court of India, the Chief Justice and Judges of the High Courts, the Chairman and Members of the Union Public Service Commission and the Chief Election Commissioner.

2. The son or daughter of such officers who have been directly recruited in Class I Services of the Central Government or a State Government or an Undertaking or an institution fully or partially financed by them; and

(a) Whose income from salary is rupees ten thousand or more per mensum, and

(b) Whose wife or husband, as the case may be, is at least a graduate, and

(c) Who is or his wife or her husband, as the case may be, owns a house in an urban area, and

(d) Whose mother or father has also been directly recruited to Class I services.

Explanation - Class I means the pay bracket fixed by the State Government from time to time for Class I.

3. The son or daughter of such person engaged as doctor, advocate, chartered accountant, tax consultant, financial consultant, management consultant, architect or other professionals, and

(a) Whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and

(b) Whose wife or husband, as the case may be, is at least a graduate; and

(c) Whose family owns immovable property at least of rupees twenty lakhs.

4. The son or daughter of such person engaged in trade or commerce, and -

(a) Whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and

(b) Whose wife or husband, as the case may be, is at least a graduate; and

(c) Whose family owns immovable property at least of twenty lakhs.

5. The son or daughter of such industrialist-

(a) Whose level of investment in running unit or units is more than rupees ten crores; and

(b) Such unit or units are engaged in commercial production for at least five years and

(c) His wife or husband, as the case may be, is at least a graduate.

6. The son or daughter of such agricultural land-holder -

(a) Whose average income from all sources other than agriculture for three consecutive financial years is not less than rupees ten lakhs per annum; and

(b) Whose wife or husband, as the case may be, is at least a graduate; and

(c) Whose wife or her husband as the case may be, owns house at least of rupees twenty lakhs in an urban area.

7. The son or daughter of person, other than the persons specified in serial 1 to 6 of this Schedule :-

(a) Whose main source of income is other than animal husbandry, fisheries poultry, weaving, craftsmanship, handicraft and artisanship; and

(b) Whose average income from all sources for three consecutive financial years is not less than rupees ten lakhs per annum; and

(c) Whose wife or husband, as the case may be, is at least a graduate; and

(d) Whose family owns immovable property at least of rupees twenty lakhs."

66. On considering the law laid down in Mandal's case the challenge to the Office Memorandum dated 8-9-1993 was negatived by observing that the criteria fixed in the said Memorandum was in conformity with the law laid down therein.

67. The same issue again came up before the three-Judges Bench of the Apex Court in Indra Sawheny's case (II) (1999 AIR SCW 4661) and the view taken in Ashok Kumar Thakur's case was restated with approval.

68. What is true in respect of Class II Officers (direct recruits) of the State Government employees is also true in respect of the promotees of the said posts. Similarly, with the implementation of the recommendations of Fifth Pay Commission even the salary of school/college teachers have moved upward considerably and what is applicable to the University teachers is also squarely applicable to these categories also. A college lecturer as at present draws a monthly salary of Rs.20,000 to Rs.25,000/-. We have colleges not only at district places but at taluka places and also in some villages. Even the monthly salary of Assistant Teachers in the schools has crossed Rs.10,000/-. These are undoubtedly creamy layers. There may be many more similar posts/occupations in the private sector or those who are self-employed as professionals in the trade, business or industry. The cases of Advocates, Doctors, Chartered Accountants, Architects, Interior Decorators and the likes in the professional category may also be covered. There is no reason as to why their children should not be excluded from the benefits of the reservation as these individuals even if they originally belong to the Other Backward Classes have achieved certain social and financial level and therefore, they have become forwards amongst the backward class. They are on par with any other forward community and hence, their children must come out of the reservation. This reservation cannot be limited only for educational purposes. It ought to be made applicable for appointments as well as reservation to the elected offices for which there is reservation. It is, therefore, imperative for the State Government as well as the State Election Commission to follow the law laid down by the Supreme Court in Indra Sawhney's case, Ashok Kumar Thakur's case and Indra Sawhney's case (II)(supra). We expect the State Government and the OBC Commission to take appropriate steps if already not taken in that regard so as to exclude them from the benefit of reservation as they belong to the category of creamy layer and lay down suitable guidelines in keeping with the enunciations to identify creamy layer more realistically.

69. When the State Government has constituted an OBC Commission in keeping with the mandate of the law laid down in Mandal's case for identification of castes/classes to be included in or excluded from the socially and economically backward classes, we do not find any valid reason as to why the Commission cannot have the powers to recommend to the State Government suitable guidelines for identification of creamy layer in these classes. It being an expert body it would certainly have an expertise even to determine creamy layer on the basis of the guidelines laid down by the Apex Court and also referred to hereinabove by us. The Commission is also expected to be familiar with the factors - educational, financial as well as social at various levels - rural semi-urban, urban and metropolitan areas. For example, a primary teacher drawing monthly salary in excess of Rs.10,000/- may fall in the category of creamy layer at a village level and therefore, either he or his children ought to be excluded from the benefit of reservation for any purpose as provided under the Constitution. However, such a primary teacher residing in urban of metropolitan area may not fall in the category of creamy layer. On the other hand, a college or university Lecturer even at taluka or district place or even in a metropolitan city may find himself in the creamy layer category. The determination of creamy layer must, therefore, be realistic and more meaningful than a mere formality. It must meet with the social ethos i.e. the benefit of reservation must be available only to those classes or castes which are really socially and economically backward. The Commission can, therefore, work on suitable guidelines and identify the posts for determination of creamy layer based on the "means factor". We, therefore, suggest that the State Government should take appropriate steps to entrust to the Commission the task of identification of creamy layer from amongst the socially and economically backward classes. In Indra Sawhney's case (IInd case), the Supreme Court also while referring to its earlier decision in the same case observed thus :

"Sofar as the directions in Indra Sawhney are concerned, they are that the Central and the State Governments are obliged to create separate bodies which will identify creamy layer in the backward classes within a time-frame."

70. The OBC Commission is headed by a retired High Court Judge and other members are expected to be familiar with the social fabric in the rural and other areas. The Gazetted Officers (Class II and above) are deemed, in law and in fact, to have reached such a level of social advancement as they ceased to belong to the backward classes irrespective of whether they occupy such posts either by direct recruitment or by promotion. No further exercise for identifying such persons are required to be undertaken and the means test is automatically put in operation in such cases. The classification of "affluent sections" could be determined by way of income or property holdings irrespective of whether such persons are employed in private employment or self-employed. It would be, therefore, in keeping with the mandate of law to leave the task of determination of creamy layer with the OBC Commission and the Commission is expected to complete identification process within a fixed time - schedule while keeping in mind the caveat in Indra Sawheny's case in the following words:

"A line has to be drawn between the forward in the backward class and the rest of the backward class. But it has to be ensured that what is given with one hand is not taken away by the other. The basis of exclusion of the "creamy layer" must not be merely economic, unless economic advancement is so high that it necessarily means social advancement, such as where a member becomes owner of a factory and is himself able to give employment to others. In such a case, his income is a measure of his social status. In the case of agriculturists, the line is to be drawn with reference to the agricultural land holding. While fixing income as a measure, the limit is not to be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement."

71. Now coming to the case of intervenors in respect of castes at serial No.320 (Nirali) and 333 (Yelam/Yalam/Yellam) in the Government Resolution dated 1-1-2001, we need to elaborate our reasoning for judicial review of the recommendations of the OBC Commission which were purportedly acted upon while issuing the said Government Resolution adding 28 more castes in the socially and economically backward classes. Admittedly, Nirali caste is already included in the Special Backward Classes. The Commission was, therefore, not in favour of including this caste in the socially and economically backward class. However, the State Government did not apply its mind to the recommendations made by the State OBC Commission and included the said caste in the Government Resolution dated 1-1-2001. The decision of the Government is contrary to the recommendations of the Commission and that too, without giving any reasons. In Indra Sawhney's case it is clearly stated that the recommendations made by the Commission are generally binding on the State Government. In case the State Government, for some reasons, decides to take a different view it is required to state its reasons in support of such a deviation. In the instant case, no such reasons have come forward either in the resolution dated 1-1-2001 or subsequently in the affidavit before us.

72. Now coming to the case of Yelam/Yalam/Yellam caste at serial no.333 we have perused the recommendations submitted by the Commission alongwith the interview reports of few selected persons. The report of Commission Indicates that by way of survey it interviewed some selected individuals and one of them was Shri. Nagargoje (a sitting Member of Legislative Assembly at the relevant time). He is reported to have stated in the said interview, inter alia, as follows :

uÈe pelr¢s nfk NÈbmeÈevs Ñflkjr De|sl. Ñflr kfj[be|t Dm½Èevs ÓÈxeve úbl: Ñflrltv ËvI²ee-Èe GÓhÞvebj ÓÈxeèÈe kgxJgxye¢s henvhfÔe²e |fT Ñekl ve|r. ÓÈxeve Ñflcptj µ|²etv|r b DÞÈ mjkejr kecxebj cptj µ|²etv kec kjebs neils. ls ×eth kÔJ kjlel. ËÑe

The above statements are not only unrealistic but are far-fetched, if we consider the existing social status of the said community. The Amicus Curiae appointed by us hail from different districts under this Bench and they are Beed, Latur, Nanded, Osmanabad, etc. They were unanimous in their statements before us that in terms of social, educational and financial status, this community in rural as well as urban areas of Maharashtra is as forward as Lingayat and Maratha communities and even be comparable with Brahmins. It is utterly false that the higher castes citizens treat this caste as lower or backward. It was vehemently submitted before us that if the members of this caste are treated as socially and economically backward classes, all other forward castes will have to be classified as Socially and Economically Backward Classes and there can hardly be any caste left which could be treated as forward.

The inclusion of a caste in the list of backward classes cannot be mechanically done and without adequate relevant data nor can it be done for extraneous reasons. Care ought to be taken that the forward castes do not get included in the backward classes list. Therefore, existence of the circumstances relevant to the formation of opinions for being included in the socially and economically backward classes is a sine qua non. If the opinion suffers from non-application of mind or taken on collateral grounds or beyond the scope of statute or based on irrelevant and extraneous considerations then same is unsustainable. The Commission has set-out indicators and allotted 16 points for all the indicators. If a class or caste is to be included in the socially and economically backward classes it was necessary that it scores 8 or more points. In the case of subject caste, the report of Commission itself admits that it has scored only 5 points out of 16 points and the only factor which weighed in the mind of the Commission was the age of girls getting married in this community. We have noted in the earlier paragraphs of this judgment that the official figures published by the State Government indicate that about 70% of the girls in rural Maharashtra get married below the age of 16 years irrespective of the fact whether they come from the forward or backward castes. Thus, the sole indicator emphasised by the Commission is irrelevant if regard be had to the social realities.

73. There cannot be any debate that Yelam/Yalam/Yellam in Maharashtra are Reddis and number of citizens coming from this caste do use their surnames as Reddi or Reddy. This community is located mainly in Latur, Osmanabad, Nanded, Beed and part of Parbhani district of erstwhile Hyderabad State. By way of migration they have also moved to the other districts like Aurangabad, Jalna and Ahmednagar. This caste is one of the dominant castes in Andhra Pradesh as well as northern districts of Karnataka State. There are matrimonial relations between Reddy/Yellam in Marathwada and their counterparts in the states of Andhra Pradesh as well as Karnataka. Marriages without dowry in this community are only by way of an exception. The observations of the Commission that a large number of citizens from this community are from farm-labours is far from realities as conceded before us by the respective learned Counsel barring exceptions of the learned Counsel representing intervenors. The Commission appears to have gone on the basis of sample survey reports submitted by two of its members after interviewing 32 families in 11 villages. The sample so collected is contrary to the decision in Mandal's case wherein it has been emphatically stated that the whole populace has to be considered while identifying castes/classes for inclusion in the socially and economically backward classes.

74. The ethnographic literature in respect of Reddi community throws light on its social, cultural, educational and economical status. These books are (1) Reddis in the Godawari Belt. (2) History of the Reddi Kingdom and (3) Castes and Tribes of Southern India. In the book titled "Castes and Tribes of Southern India", the author while dealing with the Reddi community stated thus :

"The Kapus or Reddis are the largest caste in Madras Presidency, numbering more than two millions, and are the great caste of cultivators, farmers, and squireens in the Telugu country. In the Gazetteer of Anantpur they are described as being the great landholding body in the Telugu districts, who are held in much respect as substantial, steady-going yeomen, and next to the Brahmans are the leaders of Hindu society. In the Salem manual it is stated that "the Reddis are provident. They spend their money on the land, but are not parsimonious. They are always well dressed, if they can afford it. The gold ornaments worn by the women or the men are of the finest kind of gold. Their houses are always neat and well built, and the Reddis give the idea of good substantial ryots. They live chiefly on ragi (grain), and are a fine, powerful race."

Inclusion of this caste in the socially and economically backward classes by the State Government on the recommendations of the Commission is unsustainable on all fronts. Considering the social/educational and economical factors as are required to be made applicable for identification of the socially and economically backward classes, we hold that Yelam/Yalam/Yellam caste does not qualify for being included in the said category. The decision of the State Government in respect of the said caste requires to be interfered with by us.

75. For the reasons elaborately set-out hereinabove, we allow the writ petition, quash & set-aside the impugned decision dated 29-5-1999 and direct the Scrutiny Committee to issue caste validity certificate to the petitioner as belonging to the "Thakur" Scheduled Tribe.

The issues framed in the Reference have been dealt with and we, therefore, issue a Writ in terms of the following declarations/directions.

(A) The Scrutiny Committee has powers to ascertain on the basis of evidence placed before it as to whether a claimant belongs to a particular caste like Thakur/Thakar while validating such a social status. If it holds in favour of the claimant it is required to issue a validation certificate without holding further inquiry. In case, the Committee finds that the claimant does not belong to such a caste it can invalidate the claim and it has no further powers to give any other declaration or validation as belonging to the Other Backward Classes, etc.

The Committee is not obliged to issue a validation certificate to a claimant of Thakur/Thakar Scheduled Tribe without ascertaining as to whether he belongs to such a caste on the basis of the evidence placed before it and thus, inquiry regarding the claimant as belonging to such a caste is a sine qua non for validation of his caste claim.

(B) The State Government may approach the Government of India for suitable amendments in Entry No.44 of the Presidential Order of 1976 issued under Article 342 of the Constitution of India in respect of the Scheduled Tribes more so when it has accepted the expert Committee's report that there is a non-tribal separate caste of Thakar/Thakur in the State of Maharashtra.

(C) We direct the State Government to place before the OBC Commission the entire list of Other Backward Classes including the Castes/Classes as are recognised vide Resolution dated 1-1-2001 for its review and the Commission, in turn, will proceed for examining the castes for being excluded from the said list, undoubtedly, by adopting indicators as set-out in this judgment or the other appropriate/relevant indicators in keeping with the law laid down in Indra Sawhney's case. The final report of such a review prepared by the Commission shall be presented to the Governor of Maharashtra so as to lay the same before each House of the State Legislature on the lines of the provisions set-out in Article 340(2) of the Constitution of India and before it is acted upon. The Commission is expected to complete the review within a fixed time schedule and preferably before 31-12-2002.

(D) For inclusion of any other caste in the socially and economically backward classes the Commission will follow the same procedure as adopted for review and the issue of exclusion of caste or castes may also be considered simultaneously while undertaking the review.

(E) The identification of creamy layer amongst the socially and economically backward classes in keeping with the law laid down by the Apex Court will be the responsibility of the OBC Commission and the Commission will submit its recommendations in this regard to the State Government within a period of three months on receipt of a copy of this judgment. The creamy layer so identified by the State Government on the recommendations of the OBC Commission shall be excluded from all the reservations provided under the Constitution and the persons so declared/certified to be falling under creamy layer and belonging to the Socially and Economically Backward Classes shall not be entitled to claim any reservation under the Constitution.

(F) The law laid down by this Court in Ganpat Sankhe's case is no more a good law and therefore, Government Resolution dated 23-3-1994 including Vanjari caste in Vimukta Jatis is hereby quashed and set-aside.

(G) We expect the Commission to consider recommending inclusion of any additional caste/class in the socially and economically backward classes only after the process of review as envisaged in this judgment is completed in all respects.

(H) The Government Resolution dated 1-1-2001 sofar as it relates to the castes "Nirali" (serial No.320) and "Yelam/Yalam/Yellam" caste (serial No.333) is hereby quashed and set-aside.

76. We record our appreciations for the able assistance rendered by the learned Amicus Curiae as well as the learned Counsel for the respective parties including the learned Additional Government Pleader.

77. Certified copy of the judgment, on application be supplied on priority.

Order accordingly.