Sridhar Chandra Mal vs State of Jharkhand and Others

M.Y. Eqbal, J.—The petitioner has prayed for quashing the order as contained in Memo No. 53, dated 19.2.2003 issued under the signature of Deputy Commissioner, Dumka, whereby the Deputy Commissioner has held that the petitioner is a member of backward class as he is by caste ''Mal'' and not a member of Scheduled Tribe.

Petitioner''s case is that he is the permanent, resident of village Masalia in the district of Dumka and is by caste ''Mal'' within Paharia Tribe. After due inquiry and verification he was granted caste certificate wherein he was shown as ''Mal Paharia'' which is Scheduled Tribe. Accordingly, he was qualified for the post of Panchayat Sevak and appeared before the Selection Committee. The Selection Committee, having found the petitioner fit to be appointed, recommended his name. The District Panchayat Raj Officer, Dumka, Collectorate, vide Memo No. 536, dated 15.10.1989 issued appointment letter to the petitioner under the signature of Deputy Commissioner, Dumka within the Scheduled Tribe category. It is contended that the petitioner gave his joining on 21.10.1989 but his joining was not accepted by the Block Development Officer, Masalia disputing the authenticity of the petitioner being the member of Scheduled Tribe. The petitioner, thereafter represented before the Deputy Commissioner, Dumka who, on the basis of inquiry, cancelled the appointment of the petitioner vide order dated 18.12.1989 and he was asked to show cause as to under what circumstance the petitioner was issued caste certificate.

The petitioner, thereafter, moved this Court in CWJC No. 7106/2000 which was disposed of on 1.11.2002 with a direction to the Deputy Commissioner to make thorough inquiry into the matter and issue necessary caste certificate. It was also stated in the said order that if the petitioner is really Scheduled Tribe then he shall be given the job for which he was selected and if it is found that caste certificate was fraudulently obtained, he will be proceeded legally. A copy of the said order dated 1.11.2002 passed in CWJC No. 7106/2000 has been annexed as Annexure-8 to the writ application.

Mr. Rajiv Sinha, learned counsel appearing on behalf of the petitioner submitted that the petitioner is a permanent resident of village Masalia and his caste is ''Mal'' within ''Paharia Tribe''. It is contended that because of efflux of time the living style of the petitioner and his predecessors has changed in order to get proper education. It is contended that still various relations to the petitioner who are also by case ''Mal'' within ''Paharia Tribe'' have been given caste certificate of ''Mal Paharia'' within Scheduled Tribe and they have been appointed within reserved quota of ''Scheduled Tribe''.

Respondents'' case, in the counter-affidavit, is that the petitioner obtained caste certificate of ''Mal Paharia'' which is Scheduled Tribe by playing fraud and forging documents relating to survey settlement purchas of his land. The petitioner alleged to have produced the survey documents by making his caste ''Mal Paharia'' from ''Mal'' and thereby obtained caste certificate of ''Mal Paharia'' which is Scheduled Tribe. It is contended that in terms of the direction of this Court thorough inquiry was made from the Admission Register of Masalia High School. The Junior Statistical Supervisor of Masalia Block also made inquiry and it was found that the petitioner is by caste ''Mal'' of backward community and he is not by caste ''Mal Paharia''. It is contended that the petitioner''s caste as ''Mal'' has also been proved by the survey settlement purchas of mouja Masalia.

After having heard the counsels for the parties the only question that falls for consideration is whether the petitioner is entitled to get a declaration from this Court that caste ''Mal'' is Paharia and, therefore, ''Mal Paharia'' being included in the list of Scheduled Tribe of the State of Bihar, the caste ''Mal'' is ''Mal Paharia''.

Admittedly in the Constitution Scheduled Tribes Order, 1950 read with Scheduled Caste and Scheduled Tribes Orders (Amendment) Act of 1976 the caste ''Mal'' has not been included in the schedule under the list of Scheduled Tribes. The caste ''Mal Paharia'' and ''Sauria Paharia'' have been included in the list of Scheduled Tribes.

In the Bihar District Gazetteers of Santhal Parganas compiled by Mr. P.C. Roy Chaudhury it is mentioned that paharias are considered to be the earliest inhabitants of Santhal Pargana and they are divided into three branches namely, Sauria Paharia, Mal Paharia and Kumarbhag Paharia and they represent varying degrees of assimilation to the pattern of local Hindu culture. The Sauria Paharias are mainly found in the Rajmahal bills and in the hilly areas of Godda and Pakur Sub-divisions whereas Mal Paharias are mostly found in the south of the Rajmahal hills and also in the hilly and wooded country in the south and west of the district. In the Gazetteers it is further mentioned that Mal Paharias are more Hinduised section of the Tribes. They are a tribe in transition and there has been more of acculturisation. Nowhere in the Santhal Parganas Gazetteers it is mentioned that ''Mal'' and ''Mal Paharia'' are the same. In other words, there is nothing to show that ''Mal'' are non-else than the ''Mal Paharias''.

It is well settled that the declaration made by the President by a public notification in relation to a State in consultation with the Governor of that State is conclusive and the Court cannot give a declaration that a particular caste comes within Scheduled Tribe or Scheduled Caste. In the case of Action Committee on Issue of Caste Certificate to scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another Vs. Union of India (UOI) and Another, , the Apex Court held that the power given under Articles 341 and 342 of the Constitution is limited to specifying the Castes or Tribes which shall, for the purpose of the constitution, be deemed to be Scheduled Castes on Scheduled Tribes in relation to a State or a Union territory. Once a notification is issued, the Parliament can, by law, include or exclude from the list of Scheduled Castes or Scheduled Tribes specified in the notification.

Admittedly the caste ''Mal'' is not included in the list of ''Scheduled Tribe'' and therefore, this Court cannot issue a declaration that the caste ''Mal'' comes within ''Mal Paharia'' and therefore, they are members of Scheduled Tribes. Besides the above, it is not disputed by the petitioner that in the survey settlement records and the School Admission Register the caste of the petitioner was recorded as ''Mal'' and not ''Mal Paharia'' and, therefore, the petitioner cannot be treated as ''Mal Paharia'' unless otherwise caste ''Mal'' is declared as ''Mal Paharaia'' or included in the schedule of Scheduled Tribes by the Act of the Parliament.

For the aforesaid reasons no relief can be granted to the petitioner. This writ application is, accordingly, dismissed.