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Judgment
C.W.J.C. No. 12153 was directed to be listed today along with other similar matters referred to above. By mistake it has not been listed. Let, it be treated as on day''s list along with other similar matters. All these matters are being disposed of by this common judgment and order.
It is unfortunate that a controversy has been allowed to be raised on a point by a Division Bench of this Court by way of differing from another earlier Division Bench of this Court and that again after the earlier Division Bench has been affirmed by the Supreme Court in an appeal arising (sic) of the same.
The question involved in all these matters before us and in earlier Division Bench and Supreme Court judgments is whether a person who is "Lohar" by caste is a member of "Scheduled Tribe" in view of notification issued by the President of India in the year 1976. The first judgment of the Supreme Court dated 12th September, 1990 passed in Civil Appeal No. 4631/90. We quote hereinbelow the said judgment of the Supreme Court.
Special leave granted.
The short point raised in this appeal is as to whether the Central Administrative Tribunal was right in holding that the Appellant did not belong to the Lohar community which has now been declared as a Scheduled Tribe in Chapra district of Bihar. It is not in dispute that from 1976 onwards the community has been so included but according to the Postal Department of Union of India, at the time when the Appellant entered service, the community had not been so included and, therefore, the recruitment on the footing that he was a member of a Scheduled Tribe entitled to reservation was bad.
We have looked into the records and have heard counsel for the parties. In view of the accepted position that Lohar community is included in the Scheduled Tribe from the date of amendment of the list in 1976 and the dispute as to whether the community was known as "Lohar" or (sic) if it was the latter, it has been so included before, we do not think the Tribunal was justified in holding the view it has taken.
The appeal is allowed and the order of the Tribunal is vacated. The Appellant shall now return to duty. The period between 16.12.1986 when the order removing him was made and the date when he would join in terms of our decision now, he shall be entitled to 50% of his salary. In regard to all other service benefits, his service shall be treated to be continuous. This decision may not be taken as a precedent. No costs.
Sd/- Ranganath Misra Sd/- M.M. Punchhi Sd/- K. Ramaswamy New Delhi September 12, 1990.
This question again came up before a Division Bench of this Court in C.W.J.C. No. 1034/91 which is reported in Sri Hari Sharan Thakur Vs. The State of Bihar and Others, , wherein by a judgment and order dated 28.2.92 the Division Bench decided that the caste "Lohar" has been included in such Presidential notification in the category of Scheduled Tribe. The relevant portion of the said judgment and order is as follows:
From a bare reference to the facts mentioned above, it appears that Lohar caste has been included in the Presidential notification in the category of Scheduled Tribe. Whether such benefits extended to the persons belonging to Lohar caste can be taken away by a notification issued by the Department of Personnel & Administrative Reforms placing Lohars in a category of other backward classes and not in the category of Scheduled Tribe? To solve this problem it may be noticed that similar controversy had arisen in a case of Shambhu Nath, an employee of Post & Telegraph Department, who belonged to Lohar caste and was a resident of Bihar. He had claimed all the benefits of Scheduled Tribe after inclusion of the caste Lohar in the category of Scheduled Tribe by the Presidential notification after 1976. Initially, his application for giving the said benefit was rejected by the Central Administrative Tribunal. Thereafter, he filed Civil Appeal No. 4631 of 1990 arising out of SLP No. 5684 of 1990. The Supreme Court by order dated 12.9.1990 (a copy of which has been annexed as Annexure 14 with the Supplementary Affidavit) has held that it was (sic) in dispute that from 1975 onwards, the caste Lohar has been declared as Scheduled Tribe. It would be proper to notice the relevant findings hereunder:
We have looked into the records and have heard counsel for the parties. In view of the accepted position that Lonar community is included in the Scheduled Tribe from the date of amendment of the List in 1976 and the dispute as to whether the community was known as "Lohar" or "Lohara" and if it was the latter, it has been so included from before, we do not think the Tribunal was justified in holding the view it has taken.
In view of the aforesaid'' judgment, now it is clear that the controversy regarding Lohar and Lohara has now come to an end from the date of amendment of the list in 1976 as per the Presidential notification contained in Annexure 6.
Taking into consideration the entire facts and circumstances, as mentioned above, we direct the Respondent No. 2 to consider the claim of the Petitioner for promotion in the light of the findings recorded above and issue consequential, order/notification in accordance with law. In the result, with the observation and directions mentioned above, this writ application is allowed to the extent indicated above. (Paras 6, 7, 8 & 9)
The State preferred an appeal against the same before the Supreme Court. By a judgment and order dated 21st September, 1992, which is quoted herein-below, the said appeal of the State was dismissed following the decision of the Supreme Court in Civil Appeal No. 4631 of 1990 decided on 12th September, 1990 (Shambhu Nath v. Union of India and Ors.)
ORDER
The matter was passed over once. No one appears on behalf of the Petitioners when the matter was called again. The SLP is dismissed.
Mr. B.B. Singh, learned Counsel, appears and makes a prayer for recalling the above order. Learned Counsel for the Respondent raised no objection to it. Therefore, the order is recalled.
Heard on merits. In view of the decision of this Court in C.A. No. 4631/90 decided on 12th September, 1990 (Shambhoo Nath v. Union of India and Anr.) which has been followed by the High Court, we find no ground to entertain this special leave petition. It is accordingly dismissed.
The matter should have ended there; at least so far as this High Court is concerned; but unfortunately it has not. A complication has been created by a judgment of another Division Bench of this Court in C.W.J.C. No. 10593 of 1992 dated 12.8.1993, that is, after the Supreme Court decision. There also the question involved was whether the persons who were Lohar by caste, are members of Scheduled Tribe w