Vinay Prakash
& Ors Vs. State of Bihar & Ors [1997] INSC 173 (17 February 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEAD NOTE:
O R D
E R
This is the fourth attempt made by the Lohar Community to get into the
status of Lohara. Lohars are, admittedly, blacksmiths, a backward community in
the State of Bihar. Loharas
are Scheduled Tribes in the State of Bihar.
This
special leave petition arises from the judgment and order of the Patna High
Court, made on October
10, 1996 in LPA No.
831/96. The President of India, in exercise of the power under Article 342(1)
of the Constitution read with Article 366(25), notified the Scheduled Tribes
for the State of Bihar thus; "Such tribes or tribal communities or parts
of or groups within such tribes or tribal communities as are deemed under
Article 342 to be Scheduled Tribes for the purpose of this Constitution."
Thereafter, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,
1976 came to be made adding to or deleting from the lists certain castes. In
Entry 20 of the Entries in relation to the State of Bihar, Lohara was wrongly translated as Lohra
and the same was published in the State Gazette notification. That came to be
rectified by notification published by the Government on January 6, 1995. In the meanwhile, there was spate
of litigation after the 1976 Amendment Act and the Lohars - a backward class -
as stated earlier, claimed the status of Scheduled Tribes. When the said claims
for social status of Scheduled Tribes came to be rejected, the petitioners
approached the courts. While the desired social status certificate were granted
by the High Court in some cases, the same was refused in others. When the
matter had come up for the first time, before a Bench of three Judge of this
Court, to which one of us (K. Ramaswamy, J.) was a member, in Shambhoo Nath vs.
Union of India & Anr. [ CA No. 4631/90 decided on September 15, 1990], it was wrongly conceded by the
counsel appearing for the Union of India that they were entitled to the status
of Scheduled Tribes.
On that
premise, the order of the Administrative Tribunal was set aside and direction
was given to issue the certificate of Scheduled Tribes. Since the social status
certificate were not issued despite direction in that regard, a writ petition
under Article 32 was again filed in this Court seeking a writ of mandamus
directing all the authorities in the State to issue certificate in the light of
the judgment passed by this Court in Shambhoo Nath's case. That writ petition
was also dismissed by a Bench of three Judges, to which one us (K. Ramaswamy,
J.) was a member.
Later,
the matter was considered in extenso in Nityanand Sharma vs. State of Bihar
[(1996) 3 SCC 576] wherein, considering the entire history of the Lohars and Loharas,
this Court has held in paragraphs 10,11 and 12 that Lohars being backward
class, they cannot claim the status as Lohara, which is a Scheduled Tribe and,
therefore, the entitlement on that basis is unconstitutional and it was a
retrograde step to get into the status of Scheduled Tribes to snatch the
benefits made for the Scheduled Tribes.
It was
further held that all those judgments which had taken contra view by the High
Court are not good law.
Consequently,
they filed yet another writ petition in the High Court claiming, on the basis
of the orders issued by competent authorities, the status of Lohara. In the
impugned order, the Division Bench has held that in the light of the law laid
by this Court in Nityanand Sharma's case, it was not open to the High Court to
go into the question and accordingly it dismissed the writ petition. The LPA
filed in that behalf also came to be dismissed. Thus, this special leave
petition.
Shri Rajiv
Dhawan, learned senior counsel appearing for the petitioners, has contended
that this Court in B. Basavalingappa vs. D. Munichinnappa [(1965) 1 SCR 316 at
322), Srish Kumar Choudhury vs. State of Tripura [1990 Supp. SCC 220 para 12
and para 20] and Palghat Thandan Samudhava Samrakshana Samiti vs. State of Kerala
[1994] 1 SCC 359 at 364, para 14 and 19] had considered and held that it would
not be open to the Court to enter into an enquiry as to whether a particular
caste or tribe is Scheduled Tribe for finding out whether they are entitled to
the benefit of the status conferred by the notification issued by the President
of India under Article 341 and 342 of the Constitution, as the case may be;
therefore, the view of this Court mentioned in Nityanand Sharma's case is per incurium.
We find no force in the contention. We make it clear that in the English
version of the Presidential notification Lohars in not shown as a Scheduled
Tribe. But in the translated Hindi version, it found place in the notification.
It was a wrong translation. This aspect was examined in detail in Nityanand
Sharma's case.
It is
seen that in Basavalingappa's case the question was whether 'Bhovi' caste was
Scheduled Caste within the meaning of Presidential notification for the purpose
of finding whether the respondent therein was a Scheduled Caste candidate for
the purpose of contesting the elections as a reserved candidate. Admittedly,
preceding the notification, Bhovi caste was a Scheduled Caste and under those
circumstances, this Court had gone into that question. This Court had referred
to a two Judge Bench decision in Parasram vs. Shivchand [(1969) 1 SCC 20] and Srish
Kumar Choudhary's case wherein this Court had held that it would not be open to
the Court to go into question whether 'mochi' was included in the notified
caste of chamar. Equally, in Palghat's case (supra) the question was whether Thandans
or Ezhavas in Malabar District, which was part of the Madras Province, were of
Scheduled Castes or Backward Classes and in view of the admissions made by the
Government in paragraphs 14 and 19,, this Court had held that it was not open
to the Government to go into that question until it was suitably modified by a
Presidential notification. All these cases have been considered in one judgment
or other by this Court in particular in Nityanand Sharma's case.
The
question is: whether a person, who is not a Scheduled Tribe under he
Presidential notification, is entitled to get the status of a Scheduled Tribe? it
is already held that though the English version of the Presidential
notification clearly mentions "Lohara", there was no mention of Lohar.
But while translating it, Lohars were also wrongly included as was pointed out
by this Court in Nityanand Sharma's case. It would , thus, be seen that the
Presidential notification was unequivocal and, therefore, Lohars were not
Scheduled Tribes within the meaning of the definition 'Scheduled Tribes' under
Article 366 (25) read with the notification issued by the President of India
under Article 342(1) of the Constitution and, therefore, this Court had pointed
out that they are not entitled to the status of Scheduled Tribes. It is clear
that if a Presidential notification does contain any specific class or tribe or
a part thereof, then, as held by this Court, it would be for the Parliament to
make necessary amendments in Article 342(2) of the Constitution and it is to
for the executive Government but for the Court to interpret the rules and
construe as to whether a particular caste or a tribe or a part or section
thereof is entitled to claim the status of Scheduled Tribes. Under these
circumstances, we think that the decision in Nityanand Sharma's case does not
require any reconsideration; so also other decisions referred to therein except
the Palghat's case, which was later considered in another judgment. Under these
circumstances, we do not think that there is any illegality in the decision
rendered by the Division Bench of the High Court warranting interference.
It is
then contended that the doctrine of prospective application of the judgment in Nityanand
Sharma's case may be applied. In support thereof, learned counsel relied upon
two judgments of this Court in State of Karnataka vs. Kumar G.N. Ambiga [1995 Supp.(2) SCC 560] and Government of Andhra
Pradesh vs. Bala Musalaiah [(1995) 1 SCC 184]. We are afraid, we cannot accede
to the contention of the learned counsel. This is case where the respondents
were not entitled, from the inception, to the social status of Scheduled
Tribes. Since the entry gained by them was based on wrong translation made by
the Department in the notification made by the Department in the notification
and the order was obtained on that basis, the same cannot be made the basis of
grant of the status of Scheduled Tribes.
We
cannot allow perpetratration of the illegality since under the Constitution
they are not at all entitled to the status of Scheduled Tribes. Under these
circumstances, the above two judgements have no application to the facts in
this case.
The
Special Leave Petition is accordingly dismissed.
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