C.S. DHARMADHIKARI, J.

( 1 ) IN this petition the petitioner has challenged the decision of the Caste Scrutiny Committee holding that the petitioner has failed to prove that she belongs to Bawa tribe which is notified as Nomadic Tribe in the State of Maharashtra. The petitioner has also challenged the order passed by the Additional Commissioner, Konkan Division Bombay, the appellate authority, confirming the order of the Caste Scrutiny Committee.

( 2 ) INITIALLY this writ petition was placed for hearing before the Division Bench. But in view of an apparent conflict in the decisions of this Court and a contention raised that the decision in (Vijay Shrichand Daulatanis v. State of Maharashtra and ors.) 1985 (2) Bombay Cases Reporter, 488, requires reconsideration, the matter came to be referred to a larger Bench. This is how this petition came to be placed before this Full Bench.

( 3 ) ON the basis of the arguments advanced before the Division Bench as well as before us, the following questions arise for our consideration :

) Whether Bawa from Sindh can claim the benefit of entry Gosayi of its synonyms as included in the list of Nomadic Tribe vide Government Resolution dated 21st November, 1961 as amended from time to time. b) Whether the Government Resolution dated 1st April, 1987 which directs that Sindhi Community is not covered by the said entry, is illegal as by the said resolution Government has sought the decision of this Court in Vijay Daulatanis case c) What should be the nature of evidence to be adduced before the Scrutiny Committee for establishing the fact that a particular person belongs to Nomadic Tribe d) Whether it is necessary to establish mutual affinity amongst the tribal communities specified in the schedule

( 4 ) IT was contended by Shri Gursahani, learned Counsel appearing for the petitioner, that the petitioner belongs to Hindu Bawa Nomadic Tribe, which was originally recognised as Other Backward Class in Sindh, West Pakistan. Prior to the partition of India, Sindh was part of the then Bombay presidency. After partition members of the Sindhi Community migrated to India. They migrated with their traditions and castes and, therefore, it will not be correct to say that Bawas from Sindh have socially or ethnically nothing in common with the community of Gosavi or Bawa notified by the Government of Maharashtra as Nomadic Tribe. In Vijay Daulatanis case the Division Bench of this Court has rightly came to the conclusion that even after migration the caste remained unchanged and, therefore, Bawas from Sindh were entitled to the benefits meant for the Nomadic Tribes.

( 5 ) ON the other hand it is contended by the learned Advocate General that reservations qua Other Backward Classes or Vimukta Jati and Nomadic Tribes are provided under Article 15 (4) of the Constitution of India. When in 1928, the then Government of Bombay appointed a Committee under the Chairmanship of Mr. Starte to enquire into the educational, economic and social conditions of depressed classes, Sindh was excluded from the purview of the said Committee. The said Committee had submitted its report to the Government in 1930. Further from the Government resolutions issued from time to time it is clear that whenever the Government wanted to include any caste or tribe from Sindh, a specific mention has been made in that behalf. The Bawa caste from Sindh is not any way socially or ethnically connected with the Communities known as Bawas, Bairagis or Gosavis from Maharashtra. Therefore, Bawa caste from Sindh was never included in the list of Nomadic Tribes as applicable to the State of Maharashtra. It is also contended by him that the Division Bench of this Court in Vijay Daulatanis case did not consider various aspects of the matter and erred in coming to the conclusion that Bawas from Sindh are also included in the schedule relating to the Nomadic Tribe.

( 6 ) IN support of their rival contentions learned Counsel have placed strong reliance upon the following decisions :

1 ). (Vijay Daulatani v. State of Maharashtra ). 2 ). (Prakash Ghanshamdas Nathani v. The State of Maharashtra and ors.) W. P. No. 2388 of 1981, decided on 7th April, 1982 by Deshpande C. J. and Lentin. J. 3 ). 1986 Mh. L. J. 1021 (Maharashtra Adivasi Thakur Jamat Seva Mandal and ors. v. State of Maharashtra and ors.)4 ). 1987 Mh. L. J. 801 (Devidas Baburao Majara and anr. v. State of Maharashtra and anr.)5 ). (Mukesh Thakur v. State of Maharashtra and ors.) in Appeal No. 44 of 1983 in Writ Petition No. 2177 of 1982, decided on 21st October, 1983, by Kania and Mehta, JJ. 6 ). (Subash G. Kabade v. State of Maharashtra and ors.) W. P. No. 438 of 1985 dt. 19th/20-6-1986 by Jamdar and Ratnaparkhi, JJ. 7 ). (Kum. Sunita Shamrao Pimprelkar v. State of Maharashtra and ors.) W. P. No. 2282 of 1980 dt. 5th September, 1980 by Deshmukh C. J. and Bhonsale, J. 8 ). (Vijayalaxmi K. Ambolkar v. State of Maharashtra and ors.) W. P. No. 471 of 1985 with W. P. No. 537 of 1985, decided on 15th October, 1985 by Khatri and V. P. Salve, JJ. 9 ). (Miss Ashlesha A. Sankhe v. State of Maharashtra and ors.) Appeal No. 1008 of 1986 in W. P. No. 2704 of 1986, decided on 14th November, 1986 by Kania, C. J. and Parekh, J. 10 ). (Milind S. Katware and ors. v. State of Maharashtra and ors. ). 11 ). (Abhay Parate v. State of Maharashtra) 1984 Mh. L. J. 289. 12 ). (Sunil N. Umbordekar v. Dr. V. G. Ranade) W. P. No. 2404 of 1980, decided on 24-9-1980. 13 ). (Uttam Bidessingh Rajput v. State of Maharashtra and ors. 1) W. P. No. 1915 of 1983 decided on 16-7-1983. 14 ). (Madhavrao Rajput v. State of Maharashtra and ors.) W. P. No. 1914 of 1983, decided on 16-7-1983. 15 ). (Bijendra Pratap Patel v. S. L. Dipali.) W. P. No. 2749 of 1982 decided on 23-6-1983. 16 ). (Baban V. Choudhari v. State of Maharashtra) W. P. No. 1197 of 1986 decided on 21st July, 1986 Qazi and Deshpande, JJ. 17 ). (State of Maharashtra v. Abhay and ors.) A. I. R. 1985 S. C. 328. 18 ). (Bhiwaji Eknathrao Kawale v. State of Maharashtra) W. P. No. 1572 of 1980, decided on 3rd February, 1982 by Kanade and D. B. Deshpande, JJ. 19 ). (Miss Anupama d/o Niranjan Chawla v. The State of Maharashtra) W. P. No. 2195 of 1984 decided on 9th July, 1984, by S. K. Desai and Kurdukar, JJ. 20 ). (Yeshwant Maharu Pawar v. State of Maharashtra) W. P. No. 4681 of 1987 with W. P. No. 703 of 1988, decided on 15th February, 1988 by Sawant and Kolse Patil, JJ.

( 7 ) WITH the assistance of the learned Counsel appearing for both sides we have gone through the entire material placed before us. It is not disputed that initially Sindh was part of Bombay presidency. In the census report of India (for Bombay Presidency) 1911 in column relating to Caste or Tribe Bairagi is included, and it is clarified that it is found in Karachi, Hyderabad, Shikarpur. In the column dealing with principal occupations it is mentioned that they are devotees and religious beggars. In column synonyms Gosain is referred to. In census report of 1921 for Bombay Presidency, Bawa Caste is included in the list of Backward classes. In Appendix F to the census report of 1931 for Bombay Presidency, it is specifically stated that Bawa, Atit, Bairagi, Gosavi, or Gussain and Sadhu Castes cover the whole presidency. Their traditional or habitual occupation was beggars or devotees. It was also clarified in the Remarks Column that the terms enumerated are not really synonymous but are mostly occupational in character. It is no doubt true that by a Government Resolution dated 29th May, 1933 it was made clear that the orders passed under the said resolution, do not apply to Sindh. This was obvious since Sindh was excluded from the purview of the Starte Committee. By government of India Act, 1935 Sindh was made a separate province and, therefore, separate notifications were issued for the State of Bombay, and State of Sindh. By a resolution dated 7th September, 1942 issued by the Government of Sindh Bawa was included in the list of Other Backward Classes. In the list of Other Backward Communities Bawa was included by the then Government of Bombay, vide resolution dated 23rd April, 1942. On partition of India refugees from Sindh migrated and settled in the various parts of the country, including State of Bombay. Vide Government of Bombay resolution dated 1st November, 1950 Bawa was included in Other Backward Communities. Then by a Government resolution dated 21st November, 1961, issued by the Government of Maharashtra, a list of Nomadic Tribes was notified. As per Schedule II to this resolution, which deals with the Nomadic Tribes in Maharashtra, the community Bawa is included with its synonym Bairagi. In the accompaniment to the Government circular, Educational and Social Welfare Department dated 1st October, 1962, also the said entry is continued. The entry thereafter came to be amended from time to time and the entry as corrected vide Government resolution dated 9th December, 1977 read with corrigendum dated 10th April, 1978, reads as under:

Community. Synonyms gosavi 1 Bawa, 2 Bairagi 3 Bharati, 4 Girigosavi, 5 Bharati Gosavi, 6 Saraswati Parbat, 7 Sagar, 8 Ban or Van, 9 Teerth Ashram, 10 Aranya Gharbhari, 11 Sanyasi, 12 Nathpanthi Gosavi".

Thus as the entry stands today main community is Gosavi and others are Synonyms. If all these Government Resolution are read together with the historical background, it is clear that Sindh being a part of Bombay presidency, Bawa Caste also came to be included in the resolutions issued by the then Government of Bombay.

( 8 ) AFTER the Government of India Act, 1935 separate lists were prepared for Bombay presidency and for the State of Sindh and in both these lists Bawa caste is included. It is no doubt true that in the lists prepared vide Government Resolution dated 1st November, 1980 relating to other Backward Communities at Item No. 54 Jagiasi, 55 Jajuk, 73 Khatri, 83 Kori, 86 Kucchria and 138 Suthria, a specific expression i. e. from Sindh is used. This position continued in the modified list of 1956 and 1961 also. It is pertinent to note that Bawa was included in the list of Nomadic tribes for Maharashtra as well as Other Backward Classes qua Old Bombay territory. On the basis of this it was contended by the learned Advocate general that whenever a particular caste from Sindh was sought to be included in the list of backward class, a specific mention in that behalf is made in the entry itself. In the entry relating to Bawa caste or tribe such a mention is not made, which clearly indicates that Bawas from Sindh are not included in the said entry.

( 9 ) WE find it difficult to accept this contention. Once it is held that historically Sindh was a part and parcel of the Bombay presidency and even from the census reports of the years 1911, 1921 and 1931 it is clear that this caste covered the whole of the presidency, then only because qua certain castes a specific mention is made, an inference cannot be drawn that qua others the persons from Sindh are excluded by necessary implication. On the other hand it appears that whenever it was intended that a particular entry should be restricted to a particular area, a specific reference is made in that behalf. Whenever, it was intended that the entry should cover the whole area, the restrictive expression is not used. Therefore, a person belonging to Bawa community or tribe from Sindh, which was in existence in Bombay presidency will be entitled to the benefits meant for Nomadic Tribes, if he satisfies other conditions, including that of mutual affinity.

( 10 ) IT appears that after the decision of this Court in Vijay Daulatanis case, on 1st April, 1987 the Government of Maharashtra issued a notification stating that except for the Entry Nos. 49, 50, 65, 81 and 146 in the list, from other entries of the list (which includes the list relating to Nomadic Tribes) Sindhi community stands excluded. This Government Resolution itself is challenged before us as being ultra vires and illegal. If the Government resolution dated 1st April 1987 is read as a whole then it is obvious that it came to be issued to set at nought or to get over the decision of this court in Vijay Daulatanis case. It is well settled that the State while purporting to clarify the position cannot enter upon judicial power and set aside the binding judgment of this Court by issuing such an executive flat. The executive cannot by mere declaration directly or indirectly over rule or reverse a judicial decision. This position is not disputed by the learned Advocate General. However, it was contended by him that this was not a case of directly or indirectly encroaching upon the judicial power of the Court or of setting aside the binding judgment of this Court in Vijay Daulatanis case, as Bawas from Sindh were never included is the list. According to him the said resolution is merely explanatory or declaratory. Since we have already held that Bawas from Sindh were included within the purview of the Government Resolution of 21st November, 1961, it will have to be held that the subsequent Government resolution dated 1st April, 1987, to the extent it seeks to set at nought or overrule the binding judgment of this Court in Vijay Daulatanis case i. e. , 1985 (2) Bom. C. R. 488 is obviously illegal and ultra vires, being beyond the scope of Executive power of the State Government. In the view which we have taken the questions (a) and (b) are answered in the affirmative.

( 11 ) SO far as the question relating to the nature of evidence to be adduced before the Scrutiny Committee, for establishing the fact that a particular person belongs to the Nomadic Tribe, is concerned, from the various decisions referred to above, it is clear that in none of these decisions any general principle or rule has been laid down. All these cases have been decided by the various Division Benches having regard to the facts and circumstances of each case. Variety of circumstances and peculiar features of each case cannot be identical with those in another. There are no legal litmus tests to determine the question. Therefore, the judgment of a Court as to why certain claims are accepted or rejected can hardly serve as binding decision. For this reason we are not referring to the various decisions cited at the Bar. It is equally true that so far no satisfactory criteria has been laid down to determine the question and the courts have been following case to approach, resulting in no satisfactory solution. However, in our view it is not possible to lay down any general criteria which will apply to all cases, since no singular test could be laid down. As observed by the Supreme Court in (K. C. Vasantkumar v. State of Karnataka and others) A. I. R. 1985 S. C. 1495 and particularly in para 77

"poverty, Caste, Occupation and Habitation are the principal factors which contribute to brand a class as socially backward. The customs which they honour and observe, the rituals which they fear and practice, the habits to which they adapt and conform, the festivals which they enjoy and celebrate and even the Gods that they revere and worship are enlightening elements in recognizing their social gradation and backwardness".

Therefore, it cannot be said that the questionaire prepared by the Scrutiny Committee is beside on irrelevant or extraneous consideration. The question relating to origin, old traditions, customs, festivals, god and goddesses, language, mother tongue, racial features, traits and characteristics of community, surnames, occupation, names and surnames of near relatives, treatment meted out by the tribal community and others are all relevant for identifying the person and his caste. Similarly duly verified and scrutinised caste certificates of close relatives or validly accepted caste claims of blood relations, entries in public records or the fact that the concessions meant for the tribe were either availed of or not, are relevant though none of them by themselves may be decisive. As rightly contended by the learned Advocate General, occupational traits of family both present and past, treatment meted out by others and the evidence relating to migration etc. are also relevant for determining the question as to whether a particular person belongs to Nomadic Tribe referred to in the schedule. However, weightage to be attached to any one of these factors must depend upon the facts and circumstances of each case, which can only be evolved by thoughtful penetrating investigation and analysis. It cannot be determined by means a mathematical formula but must depend upon the totality of the circumstances brought on record. For deciding the said question reports of the various Commissions and the Research Papers of the experts are also relevant. It is true that the younger generation may not be able to answer all these questions but in that case elders from the family or community, could be examined. In this context a reference could usefully be made to the latest decision of the Supreme Court in (State of Andhra Pradesh and others v. Nagam Chandrasekhara Lingam and others) A. I. R. 1988 S. C. 1309. Any contrary observations in the earlier Division Bench decisions obviously do not lay down the correct law. Hence ultimately the concerned authorities will have to decide the matter on the basis of the evidence adduced before it in each case. Therefore Question No. (c) is answered accordingly.

( 12 ) SO far as the question as to the mutual affinity among tribes included in an entry is concerned, in our view the law laid down by the Supreme Court in A. I. R. 1980 S. C. 150 (Dadaji v. Sukhdeo Babu) will apply to the present schedule also. If all the Government Resolutions are read together, it is clear that certain communities have been grouped together and therefore, it is reasonable to hold that the communities named against a specific entry are those which have mutual affinity amongst them. Hence Bawa community included in the entry can only be that which has affinity with Gosavi. Other Castes or Communities which also bear the same name but do not have such affinity cannot be deemed to fail within the scope of the said entry.

( 13 ) IT is no doubt true that it was contended by Shri Gursahani that since in the schedule the main community and its synonyms are included, which has been done on the basis of the mutual affinity itself, it is not necessary to independently establish such an affinity. We find it difficult to accept this contention. It appears that the Government of Maharashtra has been extending the Welfare scheme to four depressed or backward classes i. e. Scheduled Caste, Scheduled Tribe, Vimukta Jati-Nomadic Tribes, and Other Backward Classes. It appears to be the case of the State Government that benefits under the resolution are made available to Vimukta Jati and/or Nomadic Tribes which mainly include all castes covered by the Old Criminal Tribes Act, 1924 or Tribes which are in fact Nomadic. It is also experienced by the Government that attempts are being made by persons not belonging to any of these communities to rob the benefits meant for the genuine persons. In Maharashtra Adivasi Thakur Jamat Seva Mandals case (supra) a note was taken by this Court of the fact there is also a caste known by name Thakur which is the amalgamation of certain sub-caste and the people belonging to the said caste were taking advantage of the benefits meant for the tribes known as Thakur etc. It appears that in one of the cases cited before us i. e. Miss Ashlesha A. Sankhes case on the basis of some similarity in the nomenclature of caste Vanjari and tribe Banjara some debate has been raised. Similar is the case with Rajput, Pardeshi, Joshi, Koli and Kunbi etc. Therefore, it is absolutely necessary to find out in each case as to whether a claimant belongs to a tribe notified or a caste carrying similar name. By creating some confusion or raising a cloud nobody should be permitted to rob the benefits meant for the genuine tribals. It is experienced that the benefits are snatched away by vocal classes by creating confusion or by taking advantage of similarity in the name thereby keeping the weaker among the weak always weak. Therefore, in our view a thorough enquiry as to the mutual affinity amongst the main tribe and the tribes referred to as synonyms or sub-tribes is absolutely necessary. Though the list of Nomadic Tribes is referrable to Article 15 (4) of the Constitution, from the various Government Resolutions, it is clear that the principle followed for preparing the list is akin to the one followed for preparing the list under Article 342 of the Constitution. It is obvious that these Communities have been grouped together and therefore it is reasonable to hold that communities mentioned in the entry are those which have mutual affinity amongst them. Such a mutual affinity test will have to be satisfied before a person belonging to a particular caste or a tribe can claim the benefit of the Government Resolution. The list is meant for the State of Maharashtra and it will have to be established that the claimant belongs to Bawa tribe existing to Erstwhile Bombay Presidency, which has affinity with Gosavi the main tribe. Therefore, we answer the question No. (d) in the affirmative.

( 14 ) SO far as the merits of the case are concerned it is obvious that in view of our aforesaid findings the matter will have to be scrutinised over again by the authorities below. Hence the orders passed by the Scrutiny Committee as well as the Additional Commissioner, are set aside and the matter is remitted back to the Caste Scrutiny Committee for deciding it afresh in accordance with law obviously after giving a reasonable opportunity of being heard to the petitioner. Hence, Rule is made partly absolute with no order as to costs.

( 15 ) BEFORE parting with this judgment we would like to draw the attention of the Government towards the judgment of the Supreme Court in A. I. R. 1985 S. C. 1495. K. C. Vasantkumar v. State of Maharashtra and others. To say the least the ultimate goal is of assimilation of these tribes with the main society and to bring them in the main stream. The social and constitutional policy is to integrate tribals with larger society and not to preserve them as human specimen. Therefore, it is now high time that a fresh survey or scrutiny in this behalf is undertaken. We hope that the Government will take necessary steps for revision of the lists or schedules, in tune with the observations of the Supreme Court in the aforesaid decision. Government should also take such steps as are necessary to ensure that the persons not belonging to tribes will not be able to rob the benefits thereby depriving the genuine tribals of their rights. Rule made partly absolute.