Nikku Ram Vs Secretary, Social Justice & Empowerment And Others

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Judgment

446 paragraphs · 9,814 words

Tarlok Singh Chauhan, J

The petitioner has filed the instant petition for grant of the following reliefs:

â€œA.That the respondents be directed to issue a fresh OBC Certificate in favour of the petitioner. B. That the respondents may kindly be directed to

permit the petitioner to file his nomination for the upcoming elections.â€

It is not in dispute that the application of the petitioner for issuance of â€˜OBCâ€™ Certificate was rejected in response to his application filed on

the online portal on 22.12.2020 with the remarks that the applicant does not belong to the â€˜OBCâ€™ Category and belongs to the â€˜Brahmanâ€™

Caste. However, petitioner would claim that similar certificates have not only been issued in the past, but on that basis, he had contested last elections

held in the year 2016. Therefore, it is not open to the respondents to dispute the status of the petitioner as â€˜OBCâ€™.

The respondents have categorically stated in their instructions that Certificate No. 7219 dated 24.11.2015 on the basis of which the petitioner

contested the previous elections was issued inadvertently and, therefore, the respondents cannot be directed to repeat the mistake.

In the notification issued by the State Government on 09.09.2011, the following entry is found at Serial No. 41.

â€œ41. Maha Brahman,Acharj, Charj, Acharya, connected with the rituals of death and last rites of Hindus.â€

The petitioner, admittedly, is a â€˜Brahmanâ€™ and is trying to claim the status of OBC on the basis of sub-caste (Gotar) being a â€˜Acharj, which

according to the respondents, is not permissible, as the OBC Certificate can only be issued on the basis of the caste and not on the basis of the sub-

caste.

However, the moot question is whether a dispute of the instant kind can be resolved by way of a writ petition.

A three Judge Bench of the Honâ€™ble Supreme Court in Civil Appeal No.4096/2020, titled â€˜The State of Maharashtra and another versus

Keshao Vishwanath Sonone and anotherâ€™ decided on 18.12.2020 was confronted with somewhat similar issue. The Honâ€™ble Supreme Court

framed the following questions for consideration:

â€œ1) Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste ""Gowari"", which is not

included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as ""Gond Govari"" which is

included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to

adjudicate such claim?

2) Whether the ratio of the judgment of the Constitution Bench of this Court in B. Basavalingappa Vs. D. Munichinnappa, AIR 1965 SC 126 9permits

the High Court to take evidence to find out whether 'Gowari' are 'Gond Gowari' and is there any conflict in ratio of judgment of Constitution Bench in

B. Basavalingappa and subsequent Constitution Bench judgment of this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC 4?

3) Whether the High Court could have entered into the adjudication of the issue that 'Gond Gowari' which is a Scheduled Tribe mentioned in

Scheduled Tribes Order, 1950, as amended up to date is no more in existence and was extinct before 1911?

4) Whether the conclusion of the High Court in the impugned judgment that 'Gond Gowari' Tribe was extinct before 1911 is supported on the materials

which were on record before the High Court?

5) Whether caste 'Gowari' is same as 'Gond Gowari' included at Item No.28, Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 and the

High Court could have granted declaration to caste 'Gowari' as 'Gond Gowari' entitled for Scheduled Tribe certificate?

6) Whether the High Court is correct in its view that 'Gond Gowari' shown as Item No.28 in Entry 18 of the Constitution (Scheduled Tribes) Order,

1950 is not a sub-tribe of Gond, hence, its validity cannot be tested on the basis of affinity test specified in Government Resolution dated 24.04.1985?

Questions No.1 and 2 which alone are relevant for the adjudication of the instant petition were jointly taken up together for consideration and

considered as under:

â€œ41. The Constitution of India contains ample provisions for fulfilment of the Constitutional aspirations of social justice to the Scheduled Castes and

Scheduled Tribes and to socially and educationally backward classes of citizens. Articles 341 and 342 and Part XIV of the Constitution contains

several provisions as special provisions relating to certain classes. Article 342 of the Constitution envisages public notification specifying the tribes or

tribal communities or parts of or groups within tribes or tribal communities which shall be for the purposes of this Constitution be deemed to be

Scheduled Tribes in relation to a State after consultation with Governor thereof. Sub-clause (2) contains another important provision which provides

that any inclusion or exclusion from the list of Scheduled Tribes specified in a notification issued under clause (1) of Article 342 can be done only by

Parliament by law.

Sub-clause (2) of Article 342, thus, contains a provision conferring authority only to the Parliament to include and exclude a Scheduled Tribe in the list

as specified in the sub-clause (1) of Article 342. There has been a series of judgments of this Court including Constitution Benches on Articles 341

and 342 as well as entries in Scheduled Castes and Scheduled Tribes Order, 1950. This Court had occasion to consider as to what extent the Courts

including the High court and this Court could interpret the entries in Scheduled Castes and Scheduled Tribes Orders. The High Court has heavily relied

on Constitution Bench judgment of this Court in B.Basavalingappa Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269.

42.

We may first notice the above judgment. An Election Petition was filed challenging the election of respondent No.1 on the ground that respondent

No.1 not being member of any Scheduled Castes mentioned in Constitution (Scheduled Castes) Order, 1950 could not have contested the election

from Scheduled Caste Constituency. The respondent claimed that he belongs to a Scheduled Caste listed as Bhovi in the Order. the appellant's case

was that respondent No.1 was a Voddar by caste, which was not a Scheduled Caste. The Election Tribunal held that the caste mentioned as Bhovi in

the Scheduled Castes Order was a subcaste amongst the Voddars and the entire Voddar caste not being included as Scheduled Caste, the respondent

NO.1 was ineligible. The election was set aside. On appeal, High Court held that Voddars caste as such was not included in the Order, but

considering the facts and circumstances in existence at the time when the Order was passed in 1950, the Bhovi caste mentioned therein was no other

than Voddar caste. The High Court allowed the appeal, against which judgment, appeal was filed in this Court. The Constitution Bench of this Court

speaking through Wanchoo, J. held that it is not open to make any modification in the Order by producing evidence to show that though caste A alone

is mentioned in the Order, caste B is also a part of caste A. The ratio of the judgment is clearly discernible from paragraph 6 of the judgment, which is

to the following effect:-

It may be accepted that it is not open to make any modification in the Order by producing evidence to show (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 deem 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 [see Aray (Mala) Dakkal (Dokkalwar) etc.]. Therefore,

generally speaking it would not be open to any person to lead evidence to establish that caste B (in the example quoted above) is part of caste A

notified in the Order. Ordinarily therefore it would not have been open in the present case to give evidence that the Voddar caste was the same as the

Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order.

43.

After noticing the above preposition in paragraph 6, this Court noticed the peculiar circumstances of the case where in the Mysore State as it was

before reorganisation of 1956, there was no caste known as Bhovi at all. This Court, however, further emphasised that ""if there was a caste known as

Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi

caste"". In the above case, this Court, however, further held that when the undisputed fact is that there was no caste specifically known as Bhovi in the

Mysore State and when one finds mentioned in the Order, one has to determine which was the caste which was meant. In paragraph 7 of the

judgement, following has been laid down:-

But that in our opinion does not conclude the matter in the peculiar circumstances of the present case. The difficult in the present case arises from

the fact (which was not disputed before the High Court) that in the Mysore State as it was before the re-organisation of 1956 there was no caste

known as Bhovi at all. The Order refers to a Scheduled caste known as Bhovi in the Mysore State as it was before 1956 and therefore it must be

accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the order, when the Order

mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the order though there was no

such caste at all in the Mysore State as it existed before 1956. But when it is not disputed that there was no caste specifically known as Bhovi in the

Mysore State before 1956, the only course open to Courts to find out which casts was meant by Bhovi is to take evidence in that behalf. If there was

a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included

in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956

and one finds a caste mentioned as Bhovi in the Order, one has to determine which was the caste which was meant by that word on its inclusion in

the Order. It is this Peculiar circumstance, therefore, which necessitated the taking of evidence to determine which was the caste which was meant

by the word 'Bhovi' used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956.

44.

Shri Rohatgi, learned senior counsel appearing for the appellant has placed much reliance on paragraph 7 of the judgment and has contended that

this Court approved the exercise undertaken by the High Court to find out which was the Bhovi caste, which was included in the Constitution

(Scheduled Castes) Order, 1950, hence, an evidence was rightly looked into by the High Court, which received approval by this Court. Shri Rohatgi

further submits that although in the B. Basavalingappa's case the factum that there was no caste in the Mysore State before reorganisation known as

Bhovi at all was not disputed but the fact that whether it is disputed or not disputed shall not make any difference, whenever the issue is raised that

has been answered by the Courts looking into the evidence.

45.

The observations made by this Court in paragraph 7 in no manner dilutes the ratio of the judgment as laid down in paragraph 6 quoted above. This

Court approved the High Court exercise of looking into the evidence to determine which was the caste which was meant by the word ""Bhovi"" in the

Order in the peculiar circumstances of the case where the fact was not disputed that there was no caste known as Bhovi in the Mysore State before

1956. In paragraph 7, these following two observations made by this Court are in full accord with the ratio as laid down in paragraph 6, they are:-

.............................It cannot be accepted that the President included the caste Bhovi in the order though there was no such caste at all in the

Mysore State as it existed before 1956. .................................................. If there was a caste known as Bhovi as such in the Mysore State as it

existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. ....................................

46.

In the present case, the case of the respondent in the writ petition was categorical that Gond Gowari was a caste which was in existence since

before 25.09.1956. Even the High Court in the impugned judgment has said that caste Gond Gowari did not exist prior to 1956 rather the High Court

held that caste was there but it became extinct prior to 1911.

Thus, the circumstances in which this Court in B. Basavalingappa's case approved the looking of the evidence were peculiar to that case and has no

application in the facts of the present case.

47.

We may notice another Constitution Bench judgment in Bhaiya Lal Vs. Harikishan Singh and Ors., AIR 1965 SC 155,7 which was delivered few

months after judgment of B. Basavalingappa's case, noted the ratio of judgment and reiterated that though the appellant was not a Scheduled Caste as

enumerated in the Scheduled Castes Order but he belonged to another caste, which is sub-caste of Scheduled Caste, cannot be looked into. In the

above case, Bhaiya Lal was elected from reserved seat. Election was challenged on the ground that Bhaiya Lal belonged to Dohar caste and was not

a Chamar. Bhaiya Lal in his nomination has declared that he was member of Chamar Scheduled Caste. Election Tribunal found against the elected

candidate and set aside the election. The High Court dismissed the appeal. Bhaiya Lal questioned the judgment of the High Court as well as the

Election Tribunal. The case of the appellant was that he was a Dohar Chamar, which is a sub-caste of Chamar Scheduled Caste. This Court held that

the claim that Dohar caste is a sub-caste of Chamar caste cannot be entertained. in paragraph 8 following has been laid down:-

Incidentally, we may point out that the plea that the Dohar caste is a subcaste of the Chamar caste cannot be entertained in the present

proceedings in view of the Constitution (Scheduled Castes) Order, 1950. This Order has been issued by the President under Article 341 of the

Constitution. Article 341(1) provides that the President may with respect to any State or Union Territory, and where it is a State, after consultation

with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races, or tribes which shall for

the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. Sub- article (2)

lays down that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any

caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be

varied by any subsequent notification. It is thus clear, that in order to determine whether or not a particular caste is a scheduled caste within the

meaning of Article 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to

Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is

whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by

reason of the fact that he belongs to the Dohar caste which is a subcaste of the Chamar caste, cannot be accepted. It appears to us that an enquiry of

this kind would not be permissible having regard to the provisions contained in Article 341. In the case of B. Basavalingappa v. D. Munichinnappa this

Court had occasion to consider a similar question. The question which arose for decision in that case was whether Respondent 1, though Voddar by

caste, belonged to the scheduled caste of Bhovi mentioned in the Order, and while holding that an enquiry into the said question was permissible, the

Court has elaborately referred to the special and unusual circumstances which justified the High Court in holding that Voddar caste was the same as

the Bhovi caste within the meaning of the Order; otherwise the normal rule would be:

it may be accepted that it is not open to make any modification in the Order by producing evidence to show, 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."" That is another reason why the

plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot

be accepted.

48.

In Bhaiya Lal's case, the Constitution Bench reiterated the ratio of B. Basavalingappa's case in following words:-

it may be accepted that it is not open to make any modification in the Order by producing evidence to show, 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.

49.

We may notice few more judgments of this Court where the law on the subject was explained and reiterated. In Srish Kumar Choudhury Vs.

State of Tripura and Ors., 1990 Supp SCC 220, this Court had occasion to consider Article 342. In the above case, the appellant had filed an

application in a representative capacity before the High Court claiming that he belonged to Laskar community, which has always been treated in the

erstwhile State of Tripura as a Scheduled Tribe. The writ petition was dismissed by the High Court against which the appeal was filed. This Court

referred to earlier two Constitution Bench judgments in B. Basavalingappa's case and Bhaiya Lal's case. The observations made by the Constitution

Bench in B. Basavalingappa's case and Bhaiya Lal's case were extracted in paragraphs 8, 9 and 10. In paragraph 9, Three Judge Bench quoted the

extract from Bhaiya Lal's judgment and in paragraph 11, it was held that the ratio of judgment of Bhaiya Lal's case supports the view of earlier

judgment of Constitution Bench in B. Basavalingappa's case. In paragraphs 10 and 11, following has been laid down;-

10.

A similar dispute again came before a Constitution Bench in Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 with reference to a scheduled

tribe in an election dispute. Gajendragadkar, C.J. speaking for the court said : (SCR pp. 882-83)

It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within

the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President

may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President

can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that

the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before

a notification is issued under Article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to

the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of

castes, races or tribes, but to make the said specification by reference to different areas in the State.

11.

What we have extracted above clearly supports the view of the other Constitution Bench, namely, the list is intended to be final.

50.

The Three Judge Bench reiterated that Courts cannot enter into an enquiry to determine whether the three terms indicated in the Presidential

Order include Deshi Tripura which covers the Laskar community. In paragraph 20, following was laid down:-

20.

The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any amendment to the

Presidential Order can only be by legislation. We do not think we should assume jurisdiction and enter into an enquiry to determine whether the three

terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community;

â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦.â€

This Court also reiterated that enquiry is contemplated before the Presidential Order is made.

51.

The next judgment to be noticed is Palghat Jilla Thandan Smudhaya Samrakshna Samithi and Anr. Vs. State of Kerala and Anr., (1994) 1 SCC

359.

In the above case, a writ petition was filed claiming that the petitioner belonged to Thandan community, therefore, a Scheduled Caste certificate

be issued. The writ petition was allowed, however, the petitioner was denied admission in M.B.B.S. course in seat reserved for Scheduled Caste on

the ground that she was not a Thandan. A Three Judge Bench of this Court after noticing the ratio of earlier two Constitution Bench judgments has

held that the Court could not assume the jurisdiction and order an enquiry to determine whether the terms of the Presidential Order includes a

particular community. In paragraphs 17 and 18, following was laid down:-

17.

We may usefully draw attention to the judgment of a Bench of three learned Judges of this Court in Srish Kumar Choudhury v. State of Tripura,

1990 Supp SCC 220. This judgment considered the Constitution Bench judgments in B. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269 and

Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 and certain other judgments. It held that the two Constitution Bench judgments indicated that any

amendment to the Presidential Orders could only be by legislation. The Court could not assume jurisdiction and order an enquiry to determine whether

the terms of the Presidential Order included a particular community. A State Government was entitled to initiate appropriate proposals for modification

in cases where it was satisfied that modifications were necessary and, if after appropriate enquiry, the authorities were satisfied that a modification

was required, an amendment could be undertaken as provided by the Constitution.

18.

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.

52.

A Two Judge Bench in Kumari Madhuri Patil and Anr. Vs. Addl. Commissioner, Tribal Development and Ors., (1994) 6 SCC 241 had occasion to

consider the Constitution (Scheduled Tribes) Order, 1950 as applicable to State of Maharashtra. In Constitution (Scheduled Tribes) Order, 1950, caste

Mahadeo Koli"" was included. The appellants claimed that they were entitled to Scheduled Tribe certificate of Mahadeo Koli whereas caste was

shown in admission register as ""Hindu Koli"". The Scheduled Caste certificate was refused. A writ petition was filed in the High Court, which was

dismissed against which the matter came to this Court. This Court held that Scheduled Caste notified was Mahadeo Koli and the petitioners being

Hindu Koli were not entitled for the Scheduled Tribes certificate. In paragraph 9, following has been laid down:-

..................................................................

....It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by

providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by

unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact

disentitled to such status. The case in hand is a clear instance of such pseudostatus. Kolis have been declared to be OBC in the State of Maharashtra

being fishermen, in that their avocation is fishing and they live mainly in the coastal region of Maharashtra. Mahadeo Kolis are hill tribes and it is not a

subcaste. Even prior to independence, the Maharashtra Government declared Mahadeo Koli to be criminal tribe as early as 29- 5-1933 in Serial No.

15 in List II thereof. In 1942 Resolution in Serial No. 15 in Schedule B of the Bombay resolution Mahadeo Koli tribe was notified as a Scheduled

Tribe. It was later amended as Serial No. 13. In the Presidential Scheduled Castes/Scheduled Tribes Order, 1950, it was reiterated. A slight

modification was made in that behalf by the Presidential Notification dated 29-10- 1956. In the 1976 Amendment Act, there is no substantial change

except removing the area restriction. Thus Mahadeo Koli, a Scheduled Tribe continued to be a Scheduled Tribe even after independence. The

Presidential Notification, 1950 also does recognise by public notification of their status as Scheduled Tribes. The assumption of the Division Bench of

the Bombay High Court in Subhash Ganpatrao Kabade case1, that Mahadeo Koli was recognised for the first time in 1976 under Amendment Act,

1976, as Scheduled Tribe is not relatable to reality and an erroneous assumption made without any attempt to investigate the truth in that behalf.

Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or subcastes/ parts of or

groups of tribes or tribal communities is permissible.

53.

A Three Judge Bench in Nityanand Sharma and Anr. Vs. State of Bihar and Ors., (1996) 3 SCC 576 had also considered the similar question. The

question which was up for consideration has been noted in paragraph 2 of the judgment to the following effect:-

Short but an important question of constitutional law of the power of the court to declare a particular tribe to be Scheduled Tribe under Scheduled

Castes and Scheduled Tribes Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Orders (Amendment Act), 1976 (for short ""the

Act"") is the primary question.

54.

The petitioner in the above case belonged to Lohar community. They claimed Scheduled Tribe certificate. The State resisted the claim that Lohar

in State of Bihar is recognised as Other Backward Class and not Scheduled Tribe. The entry in the Scheduled Tribe Order mentioned Lohara/Lohra.

This Court held that the question which is up for consideration is no longer res integra and is covered by ratio of the Constitution Bench judgment in

Bhaiya Lal and B. Basavalingappa case. In paragraphs 13 and 15, following was laid down:-

13.

The question then is: Whether Lohars could be considered by the Court as synonyms of Loharas or Lohras? This question is no longer res

integra. In Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 a Constitution Bench of this Court had considered in an election petition whether Dadar

caste was a Scheduled Caste. It held that the President in specifying a caste, race or tribe has expressly been authorised to limit the notification to

parts of or groups within the caste, race or tribes. It must mean that after examining the social and educational backwardness of a caste, race or a

tribe, the President may come to the conclusion that not the whole caste, race or tribe, but parts of or groups within them should be specified as

Scheduled Caste or Scheduled Tribe. The result of the specification is conclusive. Notification issued under Article 341(1), after an elaborate enquiry

in consultation with the Governor and reaching the conclusion specifying particular caste, race or tribe with reference to different areas in the State, is

conclusive. The same view was reiterated in B. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269.

15.

It is for Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or

group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare

synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of

the Constitution, ""Scheduled Tribes"" defined under Article 366(25) as substituted (sic) under the Act, and the Second Schedule thereunder are

conclusive. Though 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 power to include in or exclude from or substitute or

declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe.

55.

Rejecting the claim of Lohar as Scheduled Tribe, following was laid down in paragraphs 18 and 20:-

18.

It is seen that in the Second Schedule in Part III of the Act, as extracted hereinbefore, Lohar was not included as a Scheduled Tribe. It is only, as

evidenced from the translated version, that the community 'Lohar' came to be wrongly translated for the word 'Lohra' or 'Lohara' and shown to have

been included in the Second Schedule, Part III, applicable to Bihar State. Mr. B.B. Singh, therefore, is right in placing before us the original version in

English and the translated version.

20.

Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that

Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar

High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes.

They are blacksmiths. We approve the said view laying down the correct law.

56.

Now, we come to a subsequent Constitution Bench judgment of this Court in State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC .4 Before

the Constitution Bench, two questions arose, which are noted in paragraph 1 of the judgment to the following effect:-

In this appeal, the following two questions arise for consideration:

(1) Whether at all, it is permissible to hold inquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within

any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution

(Scheduled Tribes) Order, 1950?

(2) Whether ""Halba-Koshti"" caste is a subtribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to the State

of Maharashtra, even though it is not specifically mentioned as such?

57.

Entry 19 of the Constitution (Scheduled Tribes) Order, 1950 as applicable in the State of Maharashtra was Halba/Halbi. The claim was raised by

another caste Halba-Koshti that they are also entitled for issue of Scheduled Tribe certificate. The caste certificate of the respondent was rejected by

the Caste Scrutiny Committee against which an appeal was filed, which was dismissed holding that respondent No.1 belonged to Koshti and did not

belong to Halba/Halbi Scheduled Tribe. Writ petition was filed by respondent No.1, which was allowed by the High Court holding that it was

permissible to enquire whether any sub-division of a tribe was a part and parcel of the tribe mentioned therein and that 'Halba-Koshti' is a subdivision

of main tribe 'Halba'/'Halbi' as per Entry No. 19 in the Scheduled Tribe Order applicable to Maharashtra. In paragraph 5 of the judgment, following

was held by this Court:-

The High Court allowed the writ petition and quashed the impugned orders inter alia holding that it was permissible to inquire whether any

subdivision of a tribe was a part and parcel of the tribe mentioned therein and that ""Halba-Koshti"" is a subdivision of main tribe ""Halba/Halbi"" as per

Entry 19 in the Scheduled Tribes Order applicable to Maharashtra. Hence the State of Maharashtra has come up in appeal by special leave,

questioning the validity and correctness of the order of the High Court allowing the writ petition of Respondent 1.

58.

This Court after noticing the constitutional provisions held that it is not possible to say that State Governments or any other authority or courts or

tribunals are vested with any power to modify or vary the Scheduled Tribes Orders. This Court also held that no enquiry is permissible and no

evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not

expressly included. In paragraph 12, following has been laid down:-

12.

..............................................It appears that the object of clause (1) of Articles 341 and 342 was to keep away disputes touching whether a

caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whether a particular caste or a tribe is Scheduled Caste or

Scheduled Tribe as the case may be, within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and

342, is to be determined looking to them as they are. Clause (2) of the said articles does not permit any one to seek modification of the said orders by

leading evidence that the caste/Tribe (A) alone is mentioned in the Order but caste/Tribe (B) is also a part of caste/Tribe (A) and as such caste/Tribe

(B) should be deemed to be a Scheduled Caste/Scheduled Tribe as the case may be. It is only Parliament that is competent to amend the Orders

issued under Articles 341 and 342. As can be seen from the entries in the schedules pertaining to each State whenever one caste/tribe has another

name it is so mentioned in the brackets after it in the schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing

that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such

in the Presidential Orders. Orders once issued under clause (1) of the said articles, cannot be varied by subsequent order or notification even by the

President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or courts or Tribunals are

vested with any power to modify or vary the said Orders. If that be so, no inquiry is permissible and no evidence can be let in for establishing that a

particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included in the Orders. Since any

exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or

letting in any evidence in that regard is neither permissible nor useful.

59.

The Constitution Bench reiterated that the power to include or exclude, amend or alter the Presidential Order is expressly and exclusively

conferred on and vested with the Parliament and Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular

caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order. Following was laid down in

paragraph 15:-

15.

Thus it is clear that States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State

is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. Number of persons in order

to gain advantage in securing admissions in educational institutions and employment in State services have been claiming as belonging to either

Scheduled Castes or Scheduled Tribes depriving genuine and needy persons belonging to Scheduled Castes and Scheduled Tribes covered by the

Presidential Orders, defeating and frustrating to a large extent the very object of protective discrimination given to such people based on their

educational and social backwardness. Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-

caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342

particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except by law made by

Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament

and that too by making a law in that regard. The President had the benefit of consulting the States through Governors of States which had the means

and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said Orders are

to be amended, it is Parliament that is in a better position to know having the means and machinery unlike courts as to why a particular caste or tribe is

to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry

as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically

included, may lead to problems........................................

60.

It is further to be noticed that Constitution Bench in Milind's case (supra) has noted the ratio of earlier two Constitution Bench judgments in B.

Basavalingappa's case and Bhaiya Lal's case and in paragraph 28 has reaffirmed the ration of above two Constitution Bench judgments. In paragraph

28, following is laid down:-

28.

Being in respectful agreement, we reaffirm the ratio of the two Constitution Bench judgments aforementioned and state in clear terms that no

inquiry at all is permissible and no evidence can be let in, to find out and decide that if any tribe or tribal community or part of or group within any tribe

or tribal community is included within the scope and meaning of the entry concerned in the Presidential Order when it is not so expressly or

specifically included. Hence, we answer Question 1 in the negative.

61.

In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the

claim or looked into the evidences to find out and decide that tribe ""Gowari"" is part of Scheduled Tribe ""Gond Gowari"", which is included in the

Constitution (Scheduled Tribes) Order, 1950. It is further clear that there is no conflict in the ratio of Constitution Bench judgments of this Court in B.

Basavalingappa's case and State of Maharashtra Vs. Milind and Ors.(supra). The ratio of B. Basavalingappa's case as noted in paragraph 6 of the

judgment and extracted above is reiterated by subsequent two Constitution Bench judgments in Bhaiya Lal's case and Milind's case. There being no

conflict in the ratio of the above Three Constitution Bench judgments, we do not find any substance in submission of Shri Rohatgi that for resolving the

conflict, the matter need to be referred to a larger Constitution Bench. We, thus, answer question Nos.1 and 2 in following words:-

(i) The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste ""Gowari"" that it be declared a

Scheduled Tribe as ""Gond Gowari"" included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken

evidence to adjudicate the above claim.

(ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa's case and Milind's case.â€

On the basis of the aforesaid reasoning, questions No.1 and 2 were answered in the following words:

â€œ(i) The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste ""Gowari"" that it be declared a

Scheduled Tribe as ""Gond Gowari"" included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken

evidence to adjudicate the above claim.

(ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa's case and Milind's case.â€

10.

In view of the aforesaid exposition of law, it is evidently clear that it is for the Parliament to amend the law and the Schedule and include in and

exclude from the Schedule a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its

declaration is conclusive. The Court has no power to declare synonyms as equivalent to the tribes specified in the Order or include in or substitute any

caste/tribe etc. No inquiry is permissible and no evidence can be led in for establishing that a particular caste or part or group within tribes or tribe is

included in Presidential Order if they are not expressly included. Even the States have no powers to amend Presidential Orders. Courts cannot and

should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in

any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342, particularly, so when in Clause (2) of the said Article , it

is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament. The power to include or exclude, amend or

alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard. The

President has the benefit of consulting the States through Governors of States which has the means and machinery to find out and recommend as to

whether a particular caste or tribe is to be included in the Presidential Order. If the said orders are to be amended, it is Parliament that is in a better

position to know having the means and machinery unlike Courts as to why a particular caste or tribe is to be included or excluded by law to be made

by Parliament. Allowing the State Governments or Courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe

should be considered as one included in the Schedule of the Presidential Order, when it is not so specifically included, may lead to problems.

11.

In view of the aforesaid exposition of law, one comes to an inescapable conclusion that the High Court cannot entertain the claim and decide

whether a particular caste or tribe is to be included in the Presidential Order.

12.

As a last ditch effort, learned counsel for the petitioner would urge that the action of the respondents is discriminatory inasmuch as one Mukesh

Kumar, who is similarly situated to the petitioner has been issued OBC Certificate on the ground that he belongs to Acharj which is recognized as

Other Backward Class, whereas, he in fact by caste is â€˜Brahmanâ€™ and his sub-caste is only Acharj. However, we find no merit in this

submission for the simple reason that the petitioner has placed no material on record to show that Mukesh Kumar in fact belongs to â€˜Brahmanâ€™

caste and only his sub-caste is Acharj.

13.

On a pointed query from this Court as to whether the said Mukesh Kumar was in any way related to the petitioner closely or distantly, learned

counsel for the petitioner answered in the negative.

14.

It is more than settled that a plea of negative parity cannot be claimed and enforced as it is only a legal right which can be enforced in a Court of

law. Reference in this regard can conveniently be made to a judgment of three Judge Bench decision of the Honâ€™ble Supreme Court inS tate of

Odisha and another vs. Anup Kumar Senapati and another (2019) 12 Scale 386 wherein it was held as under:

â€œ30. It was lastly submitted that concerning other persons, the orders have been passed by the Tribunal, which was affirmed by the High

Court and grants-in-aid has been released under the Order of 1994 as such on the ground of parity this Court should not interfere. No

doubt, there had been a divergence of opinion on the aforesaid issue. Be that as it may. In our opinion, there is no concept of negative

equality under Article 14 of the Constitution. In case the person has a right, he has to be treated equally, but where right is not available a

person cannot claim rights to be treated equally as the right does not exist, negative equality when the right does not exist, cannot be

claimed. In Basawaraj and another v. Special Land Acquisition Officer, (2013) 14 SCC 81, it was held thus:

â€œ8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the

wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some

other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal

right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which

cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity

has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others

cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a

similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the

basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of

administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005) 9

SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581 and Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)â€

In Chaman Lal v. State of Punjab and others, (2014) 15 SCC 715, it was observed as under:

Â â€œ16. More so, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has

been conferred upon someone inadvertently or otherwise, it may not be a ground to grant similar relief to others. This Court in Basawaraj

v. Land Acquisition Officer, (2013) 14 SCC 81 considered this issue and held as under: (SCC p. 85, para 8)