C.S. Dharmadhikari, J.
1. These two writ petitions have been filed in representative capacity on behalf of Thakurs the Scheduled Tribes, in view of difficulties which were being faced by them in getting the necessary Certificates
2. According to the petitioners, the Competent Authorities, who are authorised to issue the necessary Scheduled Tribes Certificates, refused to issue the certificates under the instructions of the State Government in respect of the students who are members of the Thakur Community but who were not residents of 4 districts on the slope of Sahyadri i.e. Nasik, Ratnagiri, Kolaba (Raigard) and Thane. According to the petitioners, this is wholly in breach of the Scheduled Castes and Scheduled Tribe Orders (Amendment) Act, 1976. The petitioners have also challenged the Government Resolution dated 8th March, 1985 and its accompaniments on the ground that what has been prohibited directly is being sought to be imported indirectly, meaning thereby that though by the Amending Act the area restrictions have been removed by this Government Resolution, it is indirectly imported and acting on that basis, the Competent Authorities are refusing to grant the certificates. It is their case that a Scrutiny Committee has taken an approach that a person who is a Hindu Thakur can in no case be a person belonging to Scheduled Tribe i.e. Thakur Tribe. It is the case of the petitioners that this very approach is wholly illegal. A complaint is also made by the petitioners that the entire attitude of the machinery i.e. the Scrutiny Committed and the Appellate Authority is to create more obstacles in the path of Scheduled Tribe students and to deny them their legitimate benefits rather than to help them out. The whole machinery therefore, has been created with factual and legal bias so that the legitimate claim of Thakur in general are wholly denied. In support of this contention the petitioners are relying upon the various orders passed by the Scrutiny committee or the Appellate Authority. According to the petitioners 'Thakurs' in Maharashtra belong to Scheduled Tribe which is included in the Schedule at Entry No. 44. It is also contended that the Scrutiny Committee acts in such a way that instead of furthering the intention and object of the Presidential order, it practically frustrates it. Further the procedure followed by the Scrutiny Committee is wholly arbitrary and is violative of Article 14 of the constitution of India. It is also the case of the petitioners that an artificial division is created by the Scrutiny Committee by dividing the tribe into Hindu Thakur caste and 'Thakur Scheduled Tribe'. Therefore, it is the case of the petitioners that the procedure followed and the orders passed are discriminatory and differ from person to person, and result in discrimination between the person similarly situated.
3. In Writ Petition No. 917 of 1986 apart from the general contentions, the petitioners have also claimed a relief of quashing, the order passed by the Tahsildar, Chalisgaon, dated 15th/24th June, 1985 as well as the order dated 29th November, 1985 passed by the Commissioner, Nasik Division, Nasik refusing to grant the necessary certificates in favour of petitioner No. 2 Vijaya Uttamrao Thakur and petitioner No. 3 Chhaya Bhaskar Thakur. In support of their various contentions, the petitioners have placed strong reliance upon the decision of the Division Bench of this Court in Milind v. State of Maharashtra, , as well as various research papers.
4. On the other hand it is contended by the respondents that as the State Government was anxious to see that the benefits and concessions which are meant for those who genuinely belong to the Scheduled Tribes, are availed of only by such persons and these benefits and concessions are not availed of by those who may have similarity of names or some other factors but who do not in fact belong to a particular Scheduled Tribe. The Government is equally anxious to see that while there is no manipulation or mischief resorted to in obtaining bogus certificates, those who are genuinely entitled to them are also not put to any harassment whatsoever, and this is the reason why the Government has constituted a Scrutiny Committee for Scrutinising the Certificates granted by the Competent Authorities. It was also contended that there is a difference between a Caste as understood in the ordinary sense of the term and a Tribe as understood under the Presidential Order issued in exercise of powers conferred by Article 342 of the Constitution of India. So far as Thakurs are concerned, they belong to both i.e. Caste and Tribe. As far as the Tribe is concerned, which includes in its import Thakurs, Thakars, Ka Thakur, Ma Thakur and Ka Thakar and Ma Thakar, there are certain tribal characteristics which are distinct from the social traits of the Caste Thakur including their social, religious, linguistic and cultural distinctiveness. The Government has issued Government Resolutions constituting the Scrutiny Committee and laid down procedure for granting such Certificates so as to achieve the object that persons who are not entitled to such Certificates should not obtain it by resorting to manipulation or mischief. According to the respondents tribal characteristics of a particular group of people are important for deciding the question as to whether the said group belongs to a Scheduled Tribe or not. Under the Presidential order Tribes alone are included in the Schedule. Unless a person belonging to a Tribes justifies, his claim, he is not entitled to get the certificate. Therefore, the affinity test is not only relevant but is an important factor for deciding the question. Thus while supporting the Government Resolution issued, it is ultimately contended by the respondents that in the ultimate analysis the question will boil down to the facts of the individual case and the question as to whether a person belongs to a Scheduled Tribe or is a Caste Hindu as understood in the common parlance will have to be decided in the light of the two Government Resolutions dated 29-10-1980 and 24-4-1985, and no general rule can be laid down in that behalf. In support of these contentions strong reliance is placed by the respondents upon the decision of the Supreme Court in R. Palanimuthu v. The Returning
Officer & others, . State of Maharashtra petitioner v. Abhay and others, respondents, . Dadji alias Dina v. Sukhdeobabu & others respondent, and the decisions of this Court in Prakash Nathani & others v. State of Maharashtra & others, Writ Petition No. 2383 of 1981, decided on 4-4-1983 by the Bench of V.S. Deshpande, C.J. and B. Lentin, J., Kum. Sunita S. Pimpralekar v. State of Maharashtra, Writ Petitions Nos. 2282 of 1980 with 2238 of 1980, decided on 9-9-1980 by Deshmukh C.J. and Bhonsle, J., Baban v. State of Maharashtra, Writ Petition No. 1197 of 1986, decided on 21-7-1986 by Qazi and Deshpande , JJ. and in Kum. Sunanda V. Randive v. State of Maharashtra, Writ Petition No. 4026 of 1984, decided on 11th August, 1984 by this very Bench i.e. Dharmadhikari and Kantharia , JJ. Therefore, from the rival contentions raised before us it will have to be seen as to whether the Government Resolution dated 23-1-1985 constituting the Scrutiny Committee and further Resolution dated 8th of March, 1985 providing for an appellate authority and also the Government Resolution dated 24th April, 1985 supplying the necessary data to the Competent Authority are any way illegal or beyond the scope of Scheduled Castes and Scheduled Tribes Order Amendment Act, 1976. The learned Counsel appearing for the petitioners i.e. Shri Madkholkar and Shri Mandlik in both the petitions have not challenged the authority of the Government to issue such Government Resolutions. Obviously this cannot be done in view of the decision of this Court in Milind v. State of Maharashtra, , as well as in Kum Sunanda v. State of Maharashtra, in Writ Petition No. 4026 of 1984 decided on 11.8.1984. In these decisions and particular in Kum Sunanda's case this Court held that in view of the observations of the Supreme Court in R. Palanimuthu v. The Returning Officer & others., , the scrutiny of the claim is wholly called for so that the benefits go to the genuine persons and are not robbed by others who are not entitled to it. This is the reason why scrutiny of the certificate is contemplated. However, it is contended by the petitioners that though by the Amending Act the area restrictions have been removed, indirectly by Government Resolution dated 24th April, 1985 with its accompaniments, under the garb of supplying comparative data of different Tribes, same area restrictions are sought to be imported. It is not possible for us to accept this contention, though it appears that the competent authorities have misconstrued and misinterpreted these instructions. It appears that these instructions were issued having regard to the observations of the Division Bench of this Court in Kum Sunita's case. In that case this Court has observed, that "One would have expected that in circumstances like these, an expert whom the State Government consults, should be armed with adequate material after taking research, in the structure of the Society, the Caste, the sub-Caste and their distinct features, including deities worshipped by them, relations of them, the Caste and community practices etc. In the absence of such material, which is usual in sociological study of the caste and creed, a vague allegation that advantage is being taken by people who do not belong to a particular group may not be enough." Therefore, by this Government Resolution such a data is supplied to the competent authority and scrutiny committee merely as guidelines. It is merely data and does not amount to an order or direction. It is neither exhaustive nor conclusive. While supplying such a data various characteristics of the Tribes are included in it. This does not mean that indirectly the area restrictions are being imported. To say the least the 1976 Amending Act was enacted to remove the area restrictions as the Legislature came to know about the migration of the tribals from the so called scheduled areas. The compensatory discrimination notion envisaged by Articles 15(4) or 341 and 342 of the Constitution of India, takes into account the inequalities of social, economic and educational background of the people and seeks the elimination of the existing inequalities by affirmative action. This policy is justified because unequal characteristics of human being are not as a result of inmate superiority or inferiority but of unequal-environment in which men are born or forced to live and die. Preferential treatments to unequals to make them equals is noway derogatory or negation of equality but is an aspect of equality to achieve social justice. The whole driving force behind the directive principles of the State policy and the Scheduled Castes Scheduled Tribes Order calls for a positive approach to achieve equality by equalising unequal starting points. To say the least the ultimate policy is of assimilation of those tribes with the main society. 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 for attracting foreign tourists. The change of social profile in today's India admits of increasing openness and mobility. Today one cannot understand the Indian tribal society within the frame work of classical models. The Constitution as a social document envisages a transformation of our society from medieval hierarchical and those society into modern secular and egalitarian society by extending better facilities to the downtrodden to enable them to achieve upward mobility by acquiring social, economical and educational standards. Sociological studies have revealed that as a result of the Constitutional policy of compensatory discrimination many lower status castes have been able to change their social and economical status. If this so then inspite of the Amending Act of 1976 if the Certificates are being refused on the ground that the persons belong to or reside in a particular district, then it can safely be said that either the competent authority has not understood the Government Resolution or the guidelines issued in that behalf or they are deliberately being misconstrued. This amounts to abuse of power. However, on the basis of the misconstruction or wrong interpretation of Government Resolution by an individual competent authority it cannot be held that the Government Resolution in itself is anyway bad in law. It is the abuse of power and ultimate order passed which will become bad.
5. It may also be true that the similar misunderstanding is being carried on by the Scrutiny Committee also. But that is neither here nor there. As a matter of fact the Scrutiny Committee is expected to act with open mind. If with an attitude of enquiry the Scrutiny Committee tries to find out the truth, then there is nothing wrong in scrutinising the merits of each case. The said power of scrutiny cannot be used as means of oppression or harassment. It cannot be forgotten that the Scrutiny Committee acts as a quasi judicial body, as it practically decides Constitutional rights of a person to get concessions, reserved for the Scheduled Tribes. Ultimately the question as to whether a person or claimant belongs to a particular tribe or not is a question of fact which must depend upon the facts and circumstances of each case, and no general rule can be laid down in that behalf nor a rule of thumb can be followed.
6. It cannot also be forgotten that the power conferred upon the Scrutiny Committee is neither unbridled not arbitrary. The Scrutiny Committee is expected to follow the well known norms and principles of natural justice. The decision given by the Scrutiny Committee is not made final but is subject to an appeal and such an Appellate Authority has been provided by the Government Resolution dated 8th March, 1985. Further a scrutiny or review is also permitted by the State Government vide Government Resolution dated 11th December, 1985. The Committee is obliged to pass a speaking order and give reasons in support of its findings. Therefore, it will not be correct to say that the Government Resolution issued in that behalf are anyway contrary to the Amending Act of 1976 or are arbitrary or confer an unbridled or arbitrary power upon the Scrutiny Committee.
7. However, a serious complaint was made by Shri. Madkholkar and Shri. Mandlik about the attitude and the procedure followed by the Scrutiny Committee as well as the appellate authorities. It is contended that though a genuine and valid certificate is issued in favour of the father, a son is denied such a certificate for no apparent reason. It is not known as to what is the nature of the evidence, a person is expected to produce before the competent authority or the Scrutiny Committee. On the basis of some evidence sometimes certificates are issued and many times rejected. Further there is no limit to the scrutiny. How many times a person should be subjected to the scrutiny? According to the learned Counsel for the petitioners, ultimately there should be some end to this process of scrutiny and there should be also some norms to decide the question of entitlement. In support of this contention the learned Counsel appearing for the petitioners have drawn our attention to the various orders passed by the Scrutiny Committee and/or the appellate authority. We find much substance in this criticism. However, that cannot affect the validity of the Government Resolutions. It is no doubt true that the Government itself found it difficult to support an order challenged in Writ petition No. 917 of 1986. In the affidavit in reply it is stated that the said order is duly revoked by the Government and there matter will be reinvestigated and scrutinised. Therefore, ultimately the question must boil down to the facts and circumstances of each case and the ultimate order passed. Shri Madkholkar has also drawn our attention to the observations of the Division Bench of this Court in Milind's case and has contended that it is impermissible to take an inconsistent stand about a Tribe in case of a near relatives. This is one of the conclusion to which the Nagpur Bench had reached in Milind's case. He has also drawn our attention to the instructions incorporated in the Government Resolution dated 6th September, 1983 to which also a reference was made in Milind's case. These instructions reads as follows :
"(i) Where the caste mentioned in the caste certificates and school leaving certificates tally, the claim regarding caste certificate may be held as valid, except in cases where there is a doubt in view of similarity of nomenclature of certain caste or in view of specific complaints.
ii) Similarly, the Scrutiny Committee should not be unduly influenced by letters of certificates issued by the voluntary organisations and should consider such letters of recommendations or caste certificates issued by these organisations in the context of other available evidence.
iii) Cases, where the caste claims of the blood relations viz. brother, sisters, has been held as valid by Government/Divisional Commissioner/High Court /Supreme Court, may be considered as valid provided the candidates produce affidavits to the effect that they are blood relations viz. brother/sisters and first cousin before the caste certification Committee."
However, it was pointed out by Shri Sawant, learned Advocate General that these instructions stand superseded by subsequent Government Resolution dated 6th September, 1983 and thereafter Government Resolution dated 23rd January, 1985, 8th March, 1985 and 24th April, 1985 came to be issued. By Government Resolution dated 23rd January, 1985 a Scrutiny Committee is constituted which is expected to carry out the following work :
1. Verify the caste certificates of Scheduled Tribes students seeking admissions in different educational institutions at different levels.
2. Certify caste certificates of scheduled tribes recommended by the Maharashtra Public Service Commission and different Selection Boards appointed by the Government for the seats reserved for Scheduled Tribes.
3. Verify the caste certificates of the Government Servants according to the requests or complaints made by the concerned Department/Offices.
4. Any work entrusted by Government in respect of scrutiny of caste certificates of Scheduled Tribes"
8. By a Government Resolution dated 8th of March, 1985 i.e. after the constitution of the Scrutiny Committee Government has clarified the position while constituting the appellate authority the "Government is now pleased to direct that at the time of verification of the Caste Certificates mentioned in para 2 of the Government Resolution dated 23-1-1985, the Scrutiny Committee may go into the correctness or otherwise of the certificates already issue by the competent authorities by calling additional evidence/documents from the concerned candidates and conduct detailed enquiry before arriving at the final decision even by going beyond the Government Resolutions mentioned at (i) and (ii) above, if it has reason to believe that the certificate is manipulated or fabricated or has been obtained by producing insufficient evidence etc. Similarly the Scrutiny Committee is also authorised to cancel and confiscate the certificate (s) which on full enquiry and verification is (are) found to be incorrect or invalid". Therefore the scope of the Scrutiny Committee is well defined. The expression `insufficient evidence' was adversely commented upon by the learned Counsel appearing for the petitioners. According to the learned Counsel the evidence which was found sufficient by a competent authority or even by the appellate authority, could be termed as insufficient by the Scrutiny Committee and on that basis the certificate can be revoked or cancelled arbitrarily. In our view this apprehension is not well founded, though the experience is not very happy. The expression used is `certificate has been obtained by producing insufficient evidence'. It means not based on any evidence or is based on evidence which has no probative value. Ultimately it is the quality of evidence which must decide the question and not the quantity of it. If in the scrutiny it is found that the certificate was obtained by producing irrelevant evidence, to say the least it is a facet of manipulation or fabrication. The Government Resolution does not give free handle to the Scrutiny Committee or the Appellate Authority to upset all decisions earlier taken without any rhyme or reason. It also cannot be forgotten that even if a decision is taken in that behalf by the Scrutiny Committee, the same is subject to an appeal by the appellate authority and also to review by the State Government. It is also open to challenge in writ jurisdiction of this Court. Therefore, on the basis of the general arguments advanced before us, it is not possible for us to hold that these Government Resolutions are anyway illegal or invalid.
9. From the material placed on record it appears that there is also a caster known by name, 'Thakure' which is amalgamation of certain sub-caste. The details of this sub-caste are given in the accompaniment to the Government Resolution dated 29th April, 1985, though the list is not exhaustive and is merely illustrative. From Entry No. 44 in the II Schedule the Scheduled Castes and Scheduled Tribes Order (Amendment) Act 1976, the Tribes known as Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur and Ma Thakar are notified as Scheduled Tribes. In the list notified by the Maharashtra Government for other Backward Class. Therefore, from the material placed on record it appears that there is a distinct caste carrying same nomenclature. Hence it is necessary to find out in each case as to whether the claimant belongs to Scheduled Tribe or the Caste carrying the same name. By indirect method or obliquely a caste which is not included in the Schedule relating to Scheduled Tribe, cannot be equated with or conferred the status of Scheduled Tribes. It is experienced that benefits are snatched away by most vocal classes, and thus keeping the weaker among the weak always weak. This not only robs them of their share in benefits but creates further inequalities amongst the unequals. Therefore an enquiry in each case is a must and this is precisely what is contemplated by the various Government Resolutions. It is true, that only because in the various certificates produced by the claimants he is described as 'Hindu-Thakur' it does not mean that he necessarily belongs to Thakur Caste and not to the Thakur Scheduled Tribe. His or her place of residence is also not a decisive factor. Though it was the case of the State Government in Kum. Sunita's case that the tribals cannot be Hindus, the said stand is rightly given up before us. To say the least the stand of the Government in Government Resolution dated 29th October, 1980 is that a person belonging to Scheduled Tribe, may have any religion. A Tribal can be a Hindu also. Therefore only because the claimant belongs to Hindu religion it will not necessarily follow that he is a non-tribal. Similarly only because he speaks Marathi and is not able to give certain answers to the queries made necessarily an inference can not be drawn that he not a tribal. Such a straight jacket approach to the problem is wholly impermissible. The Scrutiny Committee is expected to scrutinise each and every case on the basis of the material and evidence produced before it and is not expected to prejudge the issue and decide it on the basis of its own notions. This aspect of the matter is also considered and commented upon by the Division Bench of this Court in Milind's case and particularly in paras 29 and 30 which reads as under :---
"29. By and large, orders invalidating certificate are passed on the basis of answer to the questionnaire prepared by the Committee. The questions relate to origin, old traditions, customs, festivals Gods and Goddesses, language of origin, recital features, names of close relative etc. This historic information is sought from the new generation which quite obviously has assimilated in the general Indian Population. Professor Churye in his work "The Scheduled Tribes" has pointed out how factors like religion or occupation or racial features have proved inadequate when attempting to distinguish the tribal people from the non-tribal population in India. Mr. A.R. Desai in his work "Tribes in Transition" has observed with reference generally to all tribes that nearly 4/5 of their population has completely assimilated in the Hindu community and have been exposed to the influences of religions, economic and socio-cultural forces of Hindu society. Andre Beteille in his work". The Definition of Tribe" has observed:
'In this country, groups which correspond closely to the anthropologist's conception of tribe, have lived in long association with communities of an entirely different type. Except in a few areas, it is very difficult to come across communities which retain all their pristine tribal character. In fact, most such tribal group show in varying degrees elements, of continuity with the larger society of India......The linguistic boundary has been somewhat more impermeable, but this too has been steadily breaking down...... The abandonment of tribal dialects in favour of one of the regional languages appears to have been accelerated during the last few decades'.
"It is thus very difficult to reach a correct finding about anybody's origin on the basis of answers to such questions given in 1980. In the case of Uttam Bidesing Rajput v. State of Maharashtra, Writ Petition No. 1915 of 1983, decided on 16th July, 1983, Division Bench of this Court (Chandurkar, C.J. & Pendse, J.) held that enquiry conducted by the Director of Social Welfare on the basis of such questionnaire is clearly unsatisfactory. The same Bench on that very day passed similar order in the case of Madhaorao Rajput v. State of Maharashtra, Writ Petition No. 1914 of 1983. It is further observed that merely because school leaving certificate does not state the caste the claim could not be rejected. The same Bench in the case of Bijendra Pratap Patel v. S.L. Dipali, Writ Petition No. 2749 of 1982, decided on 23rd June, 1983, held, inter alia, that if the brother of the petitioner was given the benefit of a caste certificate earlier, the petitioner could not be deprived of the same benefit. In this background the order passed by the Chief Metropolitan Magistrate, who was an authority to issue certificate and who had refused to grant it, was quashed".
If the question is already scrutinised and decided by this Court then it is hard to believe that either the Scrutiny Committee or the Appellate Authority, will not take into consideration these observations of the High Court while deciding the question passed before it. How can any authority act contrary to the decision of the High Court? It will be contrary to the well established Principles of judicial discipline. We agree with the learned Counsel that the experience so far is far from happy and hope that there will be an improvement in the whole approach.
10. If in a given case it is demonstrated that the whole approach of the scrutiny committee or the Appellate Authority is basically wrong or is contrary to the law laid down by the High Court or the Supreme Court, then obviously the said order is liable to be quashed and set aside, but no general rule can be can be laid down in that behalf also. In the Government Resolution dated 29th of October, 1980 a time schedule of prescribed for grant of a certificate or deciding the appeal. Similarly by Government Resolution dated 8th of March, 1985 the Appellate Authority is directed to consider the appeal-applications immediately and finalise them within a period of two months under intimation to the concerned authorities. However, no time limit is prescribed for scrutiny of cases by the Scrutiny Committee. If the State Government finds that time is the essence of the whole matter, then the State Government must prescribe a time limit within which the scrutiny should also be completed by the Scrutiny Committee. The very constitution of the Scrutiny Committee was also adversely commented upon. It is suggested that the Chairman of the said Scrutiny Committee should be an independent person who has experience and is conversant with judicial process. We find much substance in this suggestion. The proceedings before the Scrutiny Committee are quasi-judicial in nature. Therefore, in our view also the Chairman of the Scrutiny Committee should be a person who is not below the rank of a retired District Judge so that the people will have confidence in the Committee. The chairman will obviously be assisted by two other members who are experts in the field. Thus expert advice will be available to the Committee, while deciding the question. This might allay all the apprehensions about the decisions of the Scrutiny Committee and the procedure followed by it. We hope that the Government will consider this suggestion favourably.
11. So far as the individual cases i.e. refusal to issue certificates in favour of petitioner No. 2 Vijaya Uttamrao Thakur and petitioner No. 3 Chhaya Bhasker Thakur in Writ Petition No. 917 of 1986, are concerned, in our view these two petitioners are entitled to the relief as claimed for by them in the Writ Petition. The order passed by the Tahasildar, Chalisgaon dated 24th of June, 1985 so far as the petitioner No. 2 Vijaya Thakur is concerned, is revoked by the Government vide order dated 4th of July, 1986, and the Divisional Commissioner, Nasik Division, Nasik has been directed to return the said matter back to the Tahasildar Chalisgaon. It is also made clear in the affidavit filed in reply that the Tahasildar, Chalisgaon will give full opportunity of hearing to petitioner No. 2, Kum. Vijaya Thakur, and will dispose of her claim on merits according to the provisions of law within a period of 15 days. So far as the order passed in the case of petitioner No. 3 Chhaya Bhaskar Thakur is concerned, it is contended by the respondents that her claim has been negatived by the appellate authority by a speaking order and by giving good reasons. The learned Advocate General has also produced before us necessary records of the case. The initial order passed by the Executive Magistrate in Chhaya Bhaskar Thakur's case is based on 2 grounds i.e. (1) that she is resident of Jalgaon district and (2) that she speaks Marathi and her mother tongue is also Marathi. It is conceded before us that on the basis of these two grounds alone her claim could not have been negatived. In the order of the Commissioner, Nasik Division, Nasik dated 29th of November, 1985 a Statement is made that Chhaya's father appeared before the Commissioner and when questioned, it was evident that he had no similarity or identity with the Scheduled Tribes community. It was also observed that it is quite likely that younger generation has deviated or adopted different socio-economic practices over years, pertaining to style to dress, Surname or worshipping Gods etc. The record produced before us do not indicate as to what questions were put, what enquiry was made and what answers were given. Therefore, though a statement is made in the order, there is nothing on record to support the said statement. A bald statement in the order cannot be equated with the evidence or reasons in support of the findings. If the orders passed in these proceedings are quasi judicial in nature, then record must disclose the material on which the order is based. In this order the Commissioner has gone to the extent of holding that even the father's certificate needs to be declared as invalid and therefore cancelled. Therefore the order passed has serious consequences. Since there is nothing on record to indicate as to on what data the finding of the appellate authority is based the order deserves to be set aside. Therefore the order passed by the Appellate Authority cannot also be sustained.
Hence Rule is made partly absolute in Writ Petition No. 917 of 1936 and the order passed by the Executive Magistrate and the Commissioner, Nasik Division, Nasik dated 29th of November, 1985, refusing to issue certificate in favour of Chhaya Bhaskar Thakur are set aside and the matter is remitted back to the Competent Authority for deciding it a fresh in accordance with law, after giving a reasonable opportunity of being heard and to put forward her case. No further orders are necessary so far as the petitioner No. 2 Vijaya Uttamrao Thakur is concerned, as the said order is already revoked and the matter is remitted back to the Competent Authority. In view of our observations no further orders are necessary in Writ Petition No. 2088 of 1986. Hence Rule in Writ Petition No. 2088 of 1986 stands discharged.
However, in the circumstances of the case these will be no orders as to costs in both the petitions.