Kumar Saha Vs. The Sub-Divisional Officer, Islampur & Ors  INSC 235 (12 February 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 AIR 1728 JT 1996 (3) 200 1996 SCALE (2)441
O R D
Special Leave Petition is filed against the order of the Calcutta High Court
dated April 25, 1994 made in Original Order T.No.2878/92.
brother Amal Kumar Saha was granted a Scheduled Caste certificate on January 15, 1982 and the petitioner was granted a
certificate on January
certificate granted to the elder brother was cancelled on December 20, 1986. Said elder brother approached the
High Court by way of writ application under Article 226 of the Constitution
which was registered as C.O. No.7629 of 1988. The said writ application was
disposed of directing petitioner's brother to file a representation. Even the
representation of the brother was rejected by order dated December 18, 1991. The petitioner was served with a
notice dated January 6,
1992 calling upon him
to show case as to why the certificate granted to him would not be cancelled.
petitioner appeared before the authority and filed his show cause. Finally, by
order dated July 9,
1992, the certificate
was cancelled. The petitioner's elder brother challenged the order of
cancellation of his certificate by filing a writ petition, which is still
pending. But the petitioner's writ petition, challenging the order of
cancellation was dismissed by the learned single Judge on August 27, 1992 and the Division Bench dismissed
the appeal in limine on April 25, 1994.Hence the special leave petition.
the matter had come up on the last occasion, we directed the learned counsel to
produce the Presidential notification published under Art.341(1) of the
Constitution which has been made part of the record. It discloses that as
regards the State of West
Bengal, item No.57 Sunri
(excluding Saha) has been declared to be Scheduled Caste.
the name of the petitioner has been described as Saha. He claimed the status as
Sunri, a Scheduled Caste.
366(24) defines "Scheduled Castes" to mean such castes, races or
tribes or part of or groups within such castes, races or tribes as are deemed
under Article 341 to be Scheduled Castes for the purpose of this 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.
seen that in exercise of the said power, the President had issued the public
notification which is called Scheduled Castes and Schedules Tribes Order, 1950
and has been amended in 1976 after the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976 was made. As indicated earlier, Sunri (excluding Saha)
is a Scheduled Caste for the purpose of State of West Bengal. The petitioner admittedly bears the name of Saha. The
authorities found as a fact that for over a century the petitioner's family are
Saha by caste. The President after consultation with the Governor, has excluded
Saha, a liquor business community as Scheduled Caste. Though some Scheduled
Castes by name Sunri adopted tapping as profession, they suffer from untouchability
while Sahas, liquor business community like Sethi balija, Edigal or Gowda in
Andhra Pradesh, are not Scheduled Castes. In the notice given to the petitioner
dalits were given and the record produced before the authorities were
considered by the competent authority which held that Sahas are not the
Scheduled Castes and that, therefore, they cannot be considered to be Sunris. In
a recent judgment in Nityananda Sharma & Anr. v. State of Bihar Ors. [JT
1996 (2) SC 117], a Bench of three Judges had examined the scope of judicial
review and power of the court to go into the question of synonyms of the caste.
now settled law that though evidence may be admissible to the limited extent of
finding out whether a caste which claims the status as Scheduled Caste or Tribe
was in fact included in the Presidential notification as amended under 1976
Act, the court is devoid of power to include in or exclude from or substitute
or declare synonyms to be a Scheduled Caste or Scheduled Tribe. The courts
would only look into the notification issued by the President to see whether
the name finds place in the notification? Saha caste is expressly excluded from
Sunri, a Scheduled Caste notified in the notification issued by the President
in relation to the State of West Bengal
which is conclusive.
certificate issued to the petitioner is, therefore, clearly unconstitutional
and a fraud on the Constitution.
petitioner cannot be considered to be a Scheduled Caste.
the Special Leave Petition is dismissed.