State of
Maharashtra Vs. Milind & Ors [2000] INSC
587 (28 November 2000)
S.N.Pattanaik,,
S.V.Patil, Dorasmy Raju, S.R.Babuu, D.P.Mohapatro
L.I.T.J
Shivaraj V. Patil J.
In
this appeal, the following two questions arise for consideration:- 1) Whether
at all, it is permissible to hold enquiry 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 concerned Entry in the Constitution (Scheduled
Tribes) Order, 1950? 2) Whether `Halba Koshti' caste is a sub-tribe within the
meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to
State of Maharashtra, even though it is not specifically
mentioned as such? On 8-1-1988, this Court passed the following
order:- "The prayer of the Union of India to be impleaded as party in both
the appeals and writ petition as party respondent is granted. The name of the
Union of India may be shown as the party respondent when the matter is listed.
Both
the sides agree that this matter involves a question which has been decided by
the Constitution Bench consisting of 5 Hon'ble Judges of this Court and that
there is also a subsequent judgment of a Division Bench of 2 Hon'ble Judges of
this Court. One of the points raised is that there is a conflict between the
two judgments. Under the circumstances, both sides state that this is a fit
case for being referred to the Constitution Bench. We accordingly direct that
this matter be placed before the Hon'ble Chief Justice for placing the same
before the Constitution Bench. Both the sides state that the matter is very
urgent and the matter be listed for early hearing.
This
request may, however, be addressed to the Constitution Bench." Pursuant to
the said order, the appeal is placed before us for consideration and decision.
The
facts briefly stated to the extent they are relevant and required for the
decision are the following.
The
respondent no. 1 herein filed the Writ Petition No. 2944/84 at the Nagpur Bench
of the Bombay High Court to quash the orders passed by the Director of Social
Welfare (R-6) and the Additional Tribal Commissioner (R-5) which invalidated
the caste certificate issued to him as belonging to Scheduled Tribe. It is
stated that Raoji Koshti of Khapa Town in Nagpur Tehsil had a son by name Bajirao who had a
son by name Sharad. The present respondent no. 1 namely, Milind is the son of
said Sharad. On the basis of school certificate and other records of the
respondent no. 1 and his close relatives, he obtained caste certificate from
the Executive Magistrate, Nagpur on
20.8.1981 as belonging to 'Halba' Scheduled Tribe which is recognized as
Scheduled Tribe. Having the said certificate, he applied to the Government Medical College for admission to MBBS degree course
for the year 1985-86 in the reserved category meant for Scheduled Tribes. It
appears his name was included in the merit list of the candidates belonging to
the Scheduled Tribe. As per the procedure prescribed then, his certificate was
sent for verification of the Scrutiny Committee constituted under the
Directorate of Social Welfare, Pune. The said Committee after conducting
enquiry and having due regard to documents placed on record and other aspects
concluded that the respondent no. 1 did not belong to 'Halba' Scheduled Tribe.
Consequently, the Caste Certificate issued to him as such was rejected. The
respondent no. 1, aggrieved by the order made by the Committee, filed an appeal
before the Additional Tribal Commissioner, Nagpur. The appellate authority having held further enquiry and after
considering all aspects, by a detailed order dismissed the appeal, clearly
recording a finding that the respondent no. 1 belonged to "Koshti"
caste and that he did not belong to "Halba/Halbi" Scheduled Tribe.
The appellate authority went to the extent of saying that he belonged to
"Koshti" caste thereof. The appellate authority collected the birth
register indicating the birth of a female child to Bajirao Raghoji, the school
record of Municipal Primary School, Khapa, indicating admission entries of said Bajirao, as
also the Dhakal Kharij Register of Municipal Primary School containing the entry of admission of
Sharad, the father of the respondent no. 1.
From
these records, it was found that the entire family of respondent no. 1 belonged
to the 'Koshti' caste. The appellate authority recorded the statement of the
father of the respondent, who accepted that these entries related to him, his
father and his step-sister Shantabai, daughter of Bajirao Koshti. In his
statement, he further admitted that all his relatives have married in their own
caste and there was no instance of inter-caste marriage having taken place;
in the
records, name of the caste and occupation were separately mentioned. His own
explanation was that entry 'Koshti' found in the documents did not indicate
caste but it only pertains to occupation. The appellate authority looking to
various other entries in the register found that the caste and occupation are
separately mentioned. It was also noticed that the respondent no. 1 did not
tender any evidence to show that he belonged to 'Halba-Koshti' sub-caste. The
appellate authority referring to various imperial Gazetteers and other public
documents for a period of 150 years came to the conclusion that the 'Koshti'
was an independent and distinct caste having no relationship or identity with
the 'Halba'/'Halbi' Scheduled Tribe. It also took note of the Circular dated
13.2.1984 issued by the Central Government that 'Halba-Koshtis' were seeking
undue benefits of reservation by posing themselves as 'Halba'/'Halbi' Scheduled
Tribe and in the light of clinching evidence the appellate authority felt
itself bound to hold that the respondent no. 1 did not belong to the 'Halba'
Scheduled Tribe and declined to give presumptive value to the school leaving
certificate of the respondent no. 1 as postulated in the Circular dated
31.07.1981, in the face of overwhelming evidence and circumstances to the
contrary. Hence the respondent no. 1 filed the writ petition as already
mentioned above.
The
High Court allowed the writ petition and quashed the impugned orders inter alia
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 sub-division of main tribe 'Halba'/'Halbi' as per Entry no. 19 in the
Scheduled Tribe Order applicable to Maharashtra. Hence the State of Maharashtra has came up in appeal by special
leave, questioning the validity and correctness of the order of the High Court
allowing the writ petition of the respondent no.
1.
Mr.
S.K. Dholakia, the learned senior counsel for the appellant, urged that (1) the
High Court committed an error in holding that it was permissible to hold an
enquiry whether a particular group is a part of the Scheduled Tribe as
specified in the Scheduled Tribe Order; (2) the High Court was not right in
saying that the decision in Bhaiya Ram Munda vs. Anirudh Patar (1971)SCR 804)
laid down the correct principle of law contrary to the Constitution Bench
decisions of this Court as to the scope of enquiry and the power to amend the
Scheduled Castes/Scheduled Tribes Order;
(3)
the High Court misinterpreted the report of the Joint Committee of the
Parliament placed before it when representations for inclusion of "Halba
Koshti" in the Scheduled Tribes Order were rejected; (4) the High Court
also committed an error in invoking and applying the principle of stare decisis
to the facts of the case in hand particularly when the earlier pronouncements
were manifestly incorrect and were rendered without having the benefit of law
laid down by this Court; (5) the High Court also erred in setting aside the orders
of respondents 5 and 6 which were made on proper and full consideration of
evidence and authorities; (6) the findings of fact recorded by the authorities
based on proper and objective assessment of evidence could not be disturbed by
the High Court; (7) it was also not correct on the part of the High Court to
give undue importance to the resolutions / circulars issued by the State
Government contrary to law and without authority of law concerning the subject;
and (8) it was not correct to say that the issue involved in the case was
already closed when the same question was kept open by this Court in the State
of Maharashtra vs. Abhay Sharavan Parathe (AIR 1985 SC 328).
Per
contra, Mr. G.L. Sanghi, the learned senior counsel for the respondent no. 1
made submissions supporting and justifying the ultimate conclusion arrived at
in the impugned judgment and order of the High Court.
According
to him, the old records relating to the period when there was no controversy,
clearly supported the case of the respondent no. 1 and the school leaving
certificate issued to the respondent no. 1 was valid. He also submitted that it
was open to show that a particular caste was part of Scheduled Tribes coming
within the meaning and scope of tribal community even though it is not
described as such in the Presidential Order. The learned senior counsel was not
in a position to say that the principle of stare decisis could be applied to
the facts of the case in hand.
He
finally submitted that at this length of time, the career and future of the
respondent no. 1 may be protected.
Mr.
P.C.Jain, the learned senior counsel for respondent no. 3, submitted that more
or less he had similar submissions to make as advanced by Shri Sanghi, the
leaned senior counsel and there was nothing more to be added except saying that
he represented the Adivasi Sangharsh Samiti, respondent no. 3 and the decision
that will be rendered in the case will have great impact on large number of
candidates.
We
have deeply and carefully considered the contentions raised and submissions
made by the learned counsel for the parties and examined the impugned judgment
of the High Court.
Articles
341 and 342 of the Constitution of India read as under:- "341. Scheduled
Castes - (1) 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].
(2)
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
notification issued under the said clause shall not be varied by any subsequent
notification".
"342.
Scheduled Tribes (1) 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 tribes or tribal communities or
parts of or groups within tribes or tribal communities which shall for the
purposes of this Constitution be deemed to be Scheduled tribes in relation to
that State[or Union territory, as the case may be].
(2)
Parliament may by law include in or exclude from the list of Scheduled Tribes
specified in a notification issued under clause (1) any tribe or tribal
community or part of or group within any tribe or tribal community, but save as
aforesaid a notification issued under the said clause shall not be varied by
any subsequent notification." By virtue of powers vested under Articles
341 and 342 of the Constitution of India, the President is empowered to issue
public notification for the first time specifying the castes, races or tribes
or part of or groups within castes, races, or tribes which shall, for the
purposes of the Constitution be deemed to be Scheduled Casts or Schedules
Tribes in relation to a State or Union Territory, as the case may be. The
language and terms of Articles 341 and 342 are identical. What is said in
relation to Article 341 mutatis mutandis applies to Article 342. The laudable
object of the said Articles is to provide additional protection to the members
of the Scheduled Castes and Scheduled Tribes having regard to social and
educational backwardness from which they have been suffering since a
considerable length of time. The words `castes' or `tribes' in the expression
`Scheduled Castes' and `Scheduled Tribes' are not used in the ordinary sense of
the terms but are used in the sense of the definitions contained in Article
366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a
Scheduled Tribe only if they are included in the President's Orders issued
under Articles 341 and 342 for the purpose of the Constitution. Exercising the
powers vested in him, the President has issued the Constitution (Scheduled
Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950.
Subsequently, some Orders were issued under the said Articles in relation to Union Territories and other States and there have been certain amendments in
relation to Orders issued, by Amendment Acts passed by the Parliament.
Plain
language and clear terms of these Articles show (1) the President under Clause
(1) of the said Articles may with respect to any State or Union Territory and
where it is a State, after consultation with the Governor, by public
notification specify the castes, races or tribes or parts of or groups within
the castes, races or tribes which shall for the purposes of the Constitution be
deemed to be Scheduled Castes/Scheduled Tribes in relation to that State or
Union Territory as the case may be; (2) Under Clause (2) of the said Articles,
a notification issued under Clause (1) cannot be varied by any subsequent
notification except by law made by Parliament. In other words, Parliament alone
is competent by law to include in or exclude a caste/tribe from the list of
Scheduled Castes and Scheduled Tribes specified in notifications issued under
Clause (1) of the said Articles. In including castes and tribes in Presidential
Orders, the President is authorized to limit the notification to parts or
groups within the caste or tribe depending on the educational and social
backwardness. It is permissible that only parts or groups within them could be
specified and further to specify castes or tribes thereof in relation to parts
of the State and not to the entire State on being satisfied that it was
necessary to do so having regard to social and educational backwardness. States
had opportunity to present their views through Governors when consulted by the
President in relation to castes or tribes, parts or groups within them either
in relation to entire State or parts of State. 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
the 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
Schedule 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
said Orders. If that be so, 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 the Orders. Since any exercise or attempt to amend the Presidential Order
except as provided in clause (2) of Articles 341 & 342 would be futile,
holding any enquiry or letting in any evidence in that regard is neither
permissible nor useful.
In the
case on hand, we are concerned with a Scheduled Tribe. In exercise of the power
conferred on him, the President issued the Constitution (Scheduled Tribes)
Order, 1950 (for short 'the Scheduled Tribes Order'), which has been amended
from time to time. By virtue of Clause (2), Parliament passed in 1976 the
Scheduled Cates and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 108/76).
In the Order relating to Maharashtra,(Part IX), Entry 19 relates to
'Halba'/'Halbi'. Few Scheduled Tribes listed in Part IX of the Schedule
relating to State of Maharashtra are given below, for example - Part IX -
Maharashtra 1) Andh 2) Baiga ................. 6) Bharia Bhumia, Bhuinhar
Bhumia, Pando ................. 8) Bhil, Bhil Garasia, Dholi Bhil, Dungri Bhil,
Dungri Garasia, Mewasi Bhil, Rawal Bhil, Tadvi Bhil, Bhagalia, Bhilala Pawra,
Vasava, Vasave ............... 12) Chodhara (excluding Akola, Amravati,
Bhandara, Buldana, Chandrapur, Nagpur, Wardha, Yavatmal, Aurangabad, Bhir,
Nanded, Osmanabad and Parbhani districts) 13) Dhanka, Tadvi, Tetaria, Valvi
............... 16) Dubla, talavia Halpati 17) Gamit, Gamta, Gavit, Mavchi,
Padvi 18) Gond, rajgond, arakh, arrakh, Agaria, Asur, Badi Maria, Bada Maria,
Bhatola, Bhimma, Bhuta, Koilabhuta, Koilabhuti, Bhar, Bisonhorn Maria, Chota
Maria, Dandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Dorla, Kaiki; Gatta, Gatti,
Gaita, Gond Gowari, Hill Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar,
Moghya, Mogia, Monghya, Mudia, Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj,
Sonjhari Jhareka, Thatia, Thotya, Wade Maria, Vade Maria 19) Halba, Halbi ............
21) Kathodi, Katkari, Dhor Kathodi, Dhor Kathkari, Son Kathodi, Son Katkari
............ 47) ............
Although
this Schedule is amended by law made by Parliament, Entry 19 is not amended for
adding 'Halba-Koshti' in the said Entry. Looking to the other Entries extracted
above in the same part, it is clear that wherever a particular area was to be
excluded, it is so done by mentioning the same in the concerned (Entry relating
to a tribe). Similarly, if a tribe or tribal community had other names and they
were to be included in the Entry, it is done by mentioning them specifically.
When there was agitation and representation to include 'Halba Koshti' within
Scheduled Tribes even long before Amendment Act, 1976 was passed and the very
fact that 'Halba-Koshti' was not included within Entry 19 relating to
'Halba/Halbi', negatives the claim of the Respondent No. 1. Further if `Halba
Koshti' was part of group or sub-tribe of 'Halba'/ 'Halbi' Tribe, there was no
need for representation to include it before Parliamentary Joint Committee.
In the
debates of Constituent Assembly (Official Report, Vol. 9) while moving to add
new Articles 300-A and 300-B after Article 300 (corresponding to Articles 341
and 342 of the Constitution), Dr. B.R.Ambedker explained as follows :-
"The object of these two articles, as I stated, was to eliminate the
necessity of burdening the Constitution with long lists of Scheduled Castes and
Scheduled Tribes. It is now proposed that the President in consultation with
the Governor or Ruler of a State should have the power to issue a general
notification in the Gazette specifying all the Castes and Tribes or groups
thereof deemed to be Scheduled Castes and Scheduled Tribes for the purpose of
this privileges which have been defined for them in the Constitution. The only
limitation that has been imposed is this: that once a notification has been
issued by the President, which, undoubtedly, he will be issuing in consultation
with and on the advice of the Government of each State, thereafter, if any
elimination was to be made from the List so notified or any addition was to be
made that must be made by Parliament and not by the President.
The
object is to eliminate any kind of political factors having a play in the
matter of the disturbance in the Schedule so published by the President."
(emphasis supplied) 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 Schedules 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 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 the Parliament and that too by
making a law in that regard. The President had the benefit of consulting 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 the Parliament
that is in a better position to know having 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
enquiry 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. In order to gain advantage of
reservations for the purpose of Articles 15(4) or 16(4) several persons have
been coming forward claiming to be covered by Presidential Orders issued under
Articles 341 and 342. This apart when no other authority other than the
Parliament, that too by law alone can amend the Presidential Orders, neither
the State Governments nor the courts nor tribunals nor any authority can assume
jurisdiction to hold enquiry and take evidence to declare that a caste or a
tribe or part of or a group within a caste or tribe is included in Presidential
Orders in one Entry or the other although they are not expressly and
specifically included. A court cannot alter or amend the said Presidential
Orders for the very good reason that it has no power to do so within the
meaning, content and scope of Articles 341 and 342. It is not possible to hold
that either any enquiry is permissible or any evidence can be let in, in
relation to a particular caste or tribe to say whether it is included within
Presidential Orders when it is not so expressly included.
In
B.Basavalingappa vs. D. Munichinnappa , a Constitution Bench of this Court has
held thus :- "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. 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." (emphasis supplied)
Thereafter looking to the peculiar circumstances of the case, the Court went on
to say that :- "The difficulty 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-orgnisation 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 caste 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."
Again a Constitution Bench of this Court in a later decision in Bhaiyalal vs.
Harikishan Singh and Others did not accept the plea of the appellant that
although he was not a Chamar as such he could claim the same status by reason
of the fact that he belonged to Dohar Caste which is sub-caste of Chamar. Even
after referring to the case of Basavallingappa (supra) it was held that an
enquiry of that kind would not be permissible in the light of the provisions
contained in Article 341 of the Constitution. In that case the appellant's
election was challenged inter alia on the ground that he belonged to the Dohar
Caste which was not recognized as a Scheduled Caste for the district in
question and so his declaration that he belonged to the Chamar Caste which was
a Scheduled Caste was improper and was illegally accepted by the Returning
Officer. The Election Tribunal declared that the election was invalid. On
appeal the High Court confirmed the same. This Court also dismissed the appeal
pointing out that the plea that the Dohar Caste is a sub-caste of the Chamar
Caste, could not be entertained in view of the Constitution Scheduled Castes
Order, 1950 issued by the President under Article 341 of the Constitution. It
is also stated 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. The notification
referred to Chamar, Jatav or Mochi. The Court observed that the enquiry, which
the Election Tribunal could hold was whether or not the appellant is a Chamar,
Jatav or Mochi and held thus :- "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 sub-caste 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." (emphasis
supplied) Referring to the case of Basavallingappa (supra) the Court explained thus
:- "In the case of B.Basavalingappa vs. D.
Munichinnappa
& Ors. this Court had occasion to consider a similar question. The question
which arose for decision in that case was whether respondent no. 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." (emphasis supplied) It may be noticed that in both
the Constitution Bench judgments (supra), P.B.Gajendragadkar, C.j., K.N.
Wanchoo, and M.Hidayatullah JJ. were common members.
In
Parasram and Anr. vs. Shivchand and Ors.
referring
to the two Constitution Bench judgments of this Court in Basavallingappa and
Bhaiyalal aforementioned, this Court declared that :- "These judgments are
binding on us and we do not therefore think that it would be of any use to look
into the gazetteers and the glossaries on the Punjab castes and tribes to which
reference was made at the Bar to find out whether mochi and chamar in some
parts of the State at least meant the same caste although there might be some
difference in the professions followed by their members, the main difference
being that Chamars skin dead animals which mochis do not. However, that may be,
the question not being open to agitation by evidence and being one the
determination of which lies within the exclusive power of the President, it is
not for us to examine it and come to a conclusion that if a person was in fact
a mochi, he could still claim to belong to the scheduled caste of chamars and
be allowed to contest an election on that basis." In that case a good deal
of evidence was adduced and arguments were advanced as to whether the word
`Chamar' and `Mochi' were synonymous. This Court further observed :- "Once
we hold that it is not open to this Court to scrutinize whether a person who is
properly described as a mochi also falls within the caste of chamars and can
describe himself as such, the question of the impropriety of the rejection of
his nomination paper based on such distinction disappears." In two cases,
Bhaiya Ram Munda vs. Anirudh Patar & Ors. and Dina vs. Narayan Singh ,
Division Benches of this Court took a contrary view to say that evidence is
admissible for the purpose of showing what an Entry in the Presidential Order
was intended to be while stating that the Entries in the Presidential Order
have to be taken as final and the scope of enquiry and admissibility of
evidence is confined within the limitations indicated.
A
three Judge Bench of this Court in Srish Kumar Choudhury vs. State of Tripura
& Ors. referring to the two Constitution Bench Judgments (supra) and the
Division Bench judgments of Bhaiyaram Munda and Dina (supra) has held thus:-
"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; but we consider it appropriate to commend to the authorities
concerned that as and when the question is reviewed it should be examined
whether the claim of the appellant representing the Laskar community to be
included in the scheduled tribes is genuine and should, therefore, be
entertained." Yet, again a three Judge Bench of this Court in Palghat
Jilla Thandan Samudhaya Samrakshna Samithi & Anr.
vs.
State of Kerala & Anr. has held that neither the State Government nor the
court can enquire into or let in evidence relating to any claim as belonging to
Scheduled Castes in any Entry of the Scheduled Castes Order. Scheduled Castes
Order has to be applied as it stands until the same is amended by appropriate
legislation. Para 20 of the said judgment reads thus:- "Learned counsel
for the State relied upon the decision in Bhaiya Ram Munda vs. Anirudh Patar
referred to in paragraph 15 of the judgment in Srish Kumar Choudhury case for
the view taken there was that evidence was admissible for the purpose of
showing what an entry in the Presidential Order was intended to mean. In
paragraphs 8, 9, 10 and 11 of the judgment, in Srish Kumar Choudhury case the
Constitution Bench judgments referred to above are discussed, as also two other
judgments taking the same view.
Then,
in paragraph 14, the judgments of this Court in the case of Dina vs. Narayan
Singh and Bhiya Ram Munda vs.
Anirudh
Patar are referred to and it is stated that both were rendered by the same
Bench of two learned Judges.
Paragraph
14 goes on to set out the substance of the decision in Dina case and paragraph
15 sets out the substance of the decision in Bhaiya Ram case. In paragraph 16
it is said,: "These authorities clearly indicate, therefore, that the
entries in the Presidential Order have to be taken as final and the scope of
enquiry and admissibility of evidence is confined within the limitations
indicated. It is, however, not open to the court to make any addition or
subtraction from the Presidential Order." There is, therefore, no doubt
that the Court in Srish Kumar Choudhury case accepted and followed, as it was
bound to do, the Constitution Bench judgments and not the two Judge judgments
in the Dina and Bhiya Ram Munda cases." In Nityanand Sharma & Another
vs. State of Bihar and Others the view expressed is that it is for the
Parliament to amend the law and the Schedule to include or exclude from the
Schedule a tribe or tribal community or part of or group within a tribe or tribal
community in the State, District or Region and its declaration is conclusive.
The court has no power to declare synonymous as equal to the tribes specified
in the Order or include in or substitute any caste / tribe etc.
In the
impugned judgment, the High Court refers to the two Constitution Bench
judgments in Basavalingappa and Bhaiyalal and also notes statement made in the
said decisions that "It may be accepted that it 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. 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." "However, that may be,
the question not being open to agitation by evidence and being one the
determination of which lies within the exclusive power of the President, it is
not for us to examine it and come to a conclusion that if a person was in fact
a Mochi, he could still claim to belong to the Scheduled Caste of Chamars and
be allowed to contest an election on that basis." The High Court again, in
paragraph 24 of the impugned judgment, observed that, "it is quite clear
that the list once prepared by the President can be amended only by the
Parliament and by none else". Having said so, the High Court went wrong in
relying on Division Bench judgments of this Court in the cases of Bhaiya Ram
Munda and Dina and the Full Bench decision of Orissa High Court in K.Adikanada
Patra vs. Gandua (AIR 1983 Orissa 89), to take a contrary view in saying that
there was no legal bar in holding enquiry as to whether 'Halba-Koshti' is a
part and parcel or sub division of 'Halba'/'Halbi' or not.
We
have no hesitation in saying that the High Court committed a serious error in
not following the aforementioned two Constitution Bench judgments of this Court
and preferring to follow Division Bench judgments of this Court and the Full
Bench judgment of Orissa High Court which did not lay down the law correctly on
the question.
Being
in respectful agreement, We reaffirm the ratio of the two Constitution Bench
judgments aforementioned and state in clear terms that no enquiry 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 concerned Entry in
the Presidential Order when it is not so expressly or specifically included.
Hence,
we answer the question no. 1 in negative.
The
Director of Social Welfare, Maharashtra, Pune (R6) on an elaborate enquiry by a
reasoned and detailed order invalidated the caste certificate issued to
respondent no.
1 as
belonging to 'Halba' Scheduled Tribe. The Additional Tribal Commissioner,
Nagpur Division, Nagpur (R5), on further enquiry in the appeal filed by the
respondent no. 1 dismissed the appeal by a well-merited order passed on
detailed and objective consideration and evaluation of the evidence placed on
record. The feeble argument based on circulars issued by State Government
advanced on behalf of the respondent no. 1 was that the old records relating to
undisputed point of time and the school certificate should have been accepted,
was rejected for the reasons stated in the orders passed by the Director of
Social Welfare and the Additional Tribal Commissioner - the appellate
authority.
The
Scrutiny Committee, as is evident from its decision dated 16.11.1983, found
that the word `Halba' in the service book entry in respect of uncle of
respondent no. 1 was written in a different ink and it was unworthy of
credence;
the
census report of the year 1931 of the Khapa town did not show even a single
digit population of Halba/Halbi Tribe;
the
respondent no. 1 gave answer to the questionnaire that he was not aware about
the traits and characteristics, customs, deities, religious beliefs etc. of the
Halba Tribe. On further enquiry in the appeal, it was revealed that the entry
at Sr. No.3065 in the Dakhal Kharij Register of the Municipal Primary School,
Shendurjunaghat, Amravati of the year 1944-45 shows that the caste of Sharad,
son of Bajirao, father of the respondent no. 1 was Koshti; in the Birth
Register of Khapa town the entry dated 2.5.1934 related to a female child
Shantabai born to Shri Bajirao revealed the caste of Shri Bajirao as Koshti;
entry at Sr.
No.
913 in the register maintained by the Municipal Primary School, Khapa, for the
period 1918-1932 in respect of said Bajirao was shown as belonging to `Koshti'
caste and his occupation was shown in the separate column as `weaving'.
The
appellate authority took note of the preponderance of uninterrupted and
consistent evidence of over 150 years comprising of official publications and
authorities like the Imperial and District Gazetteers, Revenue Settlement
Reports, Decennial Census Reports and works of renowned Sociologists and
Ethnographers. Thus having regard to the evidence and material on record, the
appellate authority concluded that the 'Koshti' Caste on one hand and the
'Halba' Tribe on the other constituted two different and distinct entities.
After reading the said orders, we find that the authorities rightly rejected
the claim of the respondent no. 1 as belonging to Scheduled Tribe. It must be
stated here itself that the High Court did not go into the correctness of the
findings of fact recorded by these two authorities in negativing the claim of
the respondent no. 1. It proceeded to hold in favour of the respondent no. 1 on
other grounds to which we will refer hereafter.
Even
otherwise, looking to the evidence placed on record and the detailed reasons
given by the respondents 6 and 5 in their orders, it is not possible to say
that the orders passed by them were not based on evidence or they were
unsustainable for any reason. Merely because a school certificate has to be
taken as valid as stated in a circular by the State Government, it was not
conclusive in the light of clinching and telling evidence against the claim of
the respondent no. 1 and in view of the circulars / instructions issued by the
Central Govt. and other circulars of the State Govt. holding the field.
The
High Court to support its view that 'Halba-Koshti' is included in 'Halba' or
'Halbi' Tribe relied on the following decisions of High Courts - (1) Sonabai
vs.
Lakhmibai
(1956 NLJ 725) (decided by the Division Bench of erstwhile Nagpur High Court);
(2) Madhukar Dekate vs. Dean of the Medical College, Nagpur (Letter Patent Appeal No.
157/1955,
decided on 4th August,
1957 by a Division
Bench of Madhya Pradesh High Court; (3) Sunit Nana Umredkar vs. Dr.
V.G.
Ranade (Writ Petition No. 2404 of 1980, decided on 24th September, 1980 by a
Division Bench of Bombay High Court); (4) Prabodh Parhate vs. The State of
Madhya Pradesh and Ors. (Writ Petition No. 1450 of 1981 decided on 21st January, 1982 by Division Bench of Madhya Pradesh
High Court; (5) Abhay Parate vs. State of Maharashtra, (1984 Mah. L.J. 289 - a decision of the Division Bench of
the Bombay High Court); (6) Ku. Kalpana Bhishikar vs.
Director
of Social Welfare ( Writ Petition NO. 95 of 1985, decided on 14th February,
1985 by Division Bench of Bombay High Court). In paragraph 16 of the impugned
judgment, the High Court has stated thus:- "It is submitted on behalf of
the petitioners that these decisions rendered during a long span of over 34
years by different Benches of different High Courts consistently holding that
"Halba Koshti is "Halba" must have or in any case reasonably
supposed to have affected the course of life of a large portion of the
community and now taking a different view, would lead to uncertainty and chaos
and hence we should desist from making a departure. We see considerable force
in the submission specially in the background of the undisputed position that
even the Government recognized "Halba Koshtis" as "Halba"
for a long period of nearly ten years between 1967 to 1977 by issuing
circulars/instructions from time to time." The High Court applied the
doctrine of stare decisis on the grounds that the decisions referred to above
were considered judgments; even Government accepted their correctness in the
courts; the State Government independently took the same view after repeated
deliberations for number of years; taking a contrary view would lead to chaos,
absurd contradictions resulting in great public mischief. In our view, the High
Court was again wrong in this regard. The learned senior counsel for the
respondent no. 1 was not in a position to support this reasoning of the High
Court and rightly so in our opinion.
In the
decisions listed above except the first two decisions, all other decisions were
rendered subsequent to two Constitution Bench judgments (supra) of this Court.
The first two judgments were delivered in 1956 and 1957. In this view, the High
Court was not right in stating that the decisions were rendered during a long
span of over 34 years by different benches of different High Courts,
consistently holding that 'Halba-Koshti' is 'Halba'. The rule of stare decisis
is not inflexible so as to preclude a departure therefrom in any case but its
application depends on facts and circumstances of each case. It is good to
proceed from precedent to precedent but it is earlier the better to give
quietus to the incorrect one by annulling it to avoid repetition or
perpetuation of injustice, hardship and anything ex-facie illegal more
particularly when a precedent runs counter to the provisions of the
Constitution. The first two decisions were rendered without having the benefit
of the decisions of this Court, that too concerning the interpretation of the
provisions of the Constitution. The remaining decisions were contrary to the
law laid down by this Court. This Court in Maktul vs. Manbhari & Ors. (
1959 SCR 1099) adopting the statement of law found in Halsbury and Corpus Juris
Secundum observed thus:- "But the Supreme appellate court will not shirk
from overruling a decision, or series of a decisions, which establish a
doctrine plainty outside the statue and outside the common law, when no title
and no contract will be shaken, no persons can complain and no general course
of dealing to be altered by the remedy of a mistake." (From Halsbury).
"Because decisions should not be followed to the extent that grievous
wrong may result and accordingly the courts ordinarily will not adhere to a
rule or principle established by previous decisions which they are convinced is
erroneous. The rule of stare decisis is not so imperative or inflexible as to
preclude a departure therefrom in any case, but its application must be
determined in each case by the discretion of the Court and previous decisions
should not be followed to the extent that error may be perpetuated and grievous
wrong may result" (From Corpus Juris Secondum) The decisions relied on by
the High Court to apply the doctrine of stare decisis, firstly, were not
holding the field for long time.
Secondly,
they are evidently contrary to the constitutional provisions. Thirdly, all the
decisions rendered by the High Courts after 1965 were not consistent with the
law laid down by this Court. Fourthly, if the view of the High Court is
accepted, it will lead to absurd, unjust and ex-facie illegal results running
contrary to Articles 341 and 342 of the Constitution. Fifthly, this Court in
State of Maharashtra vs. Abhay and Ors. (AIR 1985 SC 328) specifically had kept
open the larger question whether 'Halba-Koshti' is Halba. The High Court in the
impugned judgment refers to this decision but only states that the said
judgment shall govern the petitioner only. Sixthly, all the said decisions were
not directly on the point relating to Scheduled Tribes Order issued under
Article 342 of the Constitution; some of the cases arose out of civil disputes
involving adoption. Seventhly, even the State Government was not consistent in
its stand touching the issue whether 'Halba-Koshtis' were 'Halba'/'Halbis' to
consider them as Scheduled Tribes. As early as on 20.7.1962 itself a circular
was issued to the effect that 'Halba-Koshtis' were not Scheduled Tribes.
Further a look at the various circulars / resolutions/instructions/orders
referred to in paragraphs 20 to 22 of the impugned judgment, makes it clear
that the controversy was not settled. Hence it cannot be said that the view
'Halba-Koshti' was 'Halba'/'Halbi' Scheduled Tribe was holding the field for
long time. There arose no question of unsettling or upsetting the position in
law which itself was not a settled one, till first Constitution judgment in
Basavalingappa case was delivered by this Court. Per contra, the impugned
judgment runs contrary to the law clearly settled by various judgments of this
Court.
Thus,
the High Court was not right in invoking and applying the doctrine of stare
decisis on the facts and in the circumstances of the case.
The
High Court in paragraphs 20 to 23 dealt with circulars/resolutions/instructions/orders
made by the Government from time to time on the issue of 'Halba-Koshtis'. It is
stated in the said judgment that up to 20.7.1962 'Halba-Koshtis' were treated
as 'Halbas' in the specified areas of Vidarbha. Government of Maharashtra, Education
and Social Welfare Department issued Circular No.
CBC
1462/3073/M to the effect that 'Halba-Koshtis' were not Scheduled Tribes and
they are different from 'Halba'/'Halbis'. In the said circular it is also
stated that certain persons not belonging to 'Halba' Tribe have been taking
undue advantage and that the authorities competent to issue Caste Certificates
should take particular care to see that no person belonging to 'Halba-Koshtis'
or 'Koshti' community is given a certificate declaring him as member of
Scheduled Tribes. On 22.8.1967 the above-mentioned circular of 20.7.1962 was
withdrawn.
Strangely,
on 27.9.1967, another circular No. CBC- 1466/9183/M was issued showing the
intention to treat 'Halba- Koshti' as 'Halba'. On 30.5.1968 by letter No.
CBC-1468-2027-O,
the State Government informed the Deputy Secretary to the Lok Sabha that
'Halba-Koshti' is 'Halba'/'Halbi' and it should be specifically included in the
proposed Amendment Act. Government of Maharashtra on 29.7.1968 by letter No.
EBC-1060/49321-J-76325 informed the Commissioner for Scheduled Castes and
Scheduled Tribes that 'Halba-Koshti' community has been shown included in the
list of Scheduled Tribes in the State and the students belonging to that
community were eligible for Government of India Post Matric Scholarships. On
1.1.1969 Director of Social Welfare, Tribal Research Institute, Pune, by his
letter No.
TRI/I/H.K./68-69
stated that the State Government could not in law amend the Scheduled Tribe
Order and that a tribe not specifically included, could not be treated as
Scheduled Tribe. In this view the Director sought for clarification.
The
Government of India on 21.4.1969 wrote to the State Government that in view of
Basavalingappa's case (supra) 'Halba-Koshti' community could be treated as
Scheduled Tribe only if it is added to the list as a sub-tribe in the Scheduled
Tribes Order and not otherwise. Thereafter few more circulars were issued by
the State Government between 24.10.1969 and 6.11.1974 to recognize
'Halba-Koshtis' as 'Halbas' and indicated as to who were the authorities
competent to issue certificates and the guidelines were given for enquiry.
There was again departure in the policy of the State Government by writing a
confidential letter No.
CBC-
1076/1314/Desk-V dated 18.1.1977. Government informed the District Magistrate, Nagpur, that 'Halba-Koshtis' should not be
issued 'Halba' Caste Certificate. Thereafter, few more circulars, referred to
in paragraph 22 of the judgment, were issued. It may not be necessary to refer
to those again except to the circular dated 31.7.1981 bearing No.
CBC-1481/(703)/D.V.
by which the Government directed that until further orders insofar as 'Halbas'
are concerned, the school leaving certificate should be accepted as valid for
the purpose of the caste. Vide Resolution dated 23.1.1985 a new Scrutiny
Committee was appointed for verification of castes certificates of Scheduled
Tribes. The High Court had observed in paragraph 23 of the judgment that
several circulars issued earlier were withdrawn but the said circular dated
31.7.1981 was not withdrawn. For the first time on 8.3.1985 the Scrutiny
Committee was authorized to hold enquiry if there was any reason to believe
that the certificate was manipulated or fabricated or had been obtained by
producing insufficient evidence. Referring to these circulars/resolutions the
High Court took the view that the caste certificate issued to the respondent
no. 1 could be considered as valid and upto 8.3.1985 the enquiry was governed
by circular dated 31.7.1981. The High Court dealing with the stand of the State
Government on the issue of 'Halba-Koshti', from time to time, and also
referring to circulars/ resolutions/instructions held in favour of the
respondent no. 1 on the ground that the appellant was bound by its own
circulars/orders. No doubt, it is true, the stand of the appellant as to the
controversy relating to 'Halba-Koshti' has been varying from time to time but
in the view we have taken on question no. 1, the circulars /resolutions
/instructions issued by the State Government from time to time, some time
contrary to the instructions issued by the Central Government, are of no
consequence.
They
could be simply ignored as the State Government had neither authority nor
competency to amend or alter the Scheduled Tribes Order. It appears taking note
of false and frivolous claims being made by persons not entitled to claim such
status, the Government of India addressed letters and issued instructions
between the period from 21.4.1969 to 1982 to impress that there should be
strict enquiry before issuance of caste certificates to persons claiming
Scheduled Caste / Scheduled Tribe status; strict scrutiny into the caste of the
parent should be effected as a check-point.
The
State Government issued Resolution dated 29.10.1980 in consonance with the
instructions given by the Central Government laying down the guidelines on
which the enquiry should be held before issue of Caste Certificate. Another
Resolution dated 24.2.1981 was also issued for appointing a scrutiny committee
to verify whether the Caste Certificate has been issued to person who is really
entitled to it in view of the complaints of misuse of reservational benefits on
a large scale. These Resolutions were operative as they had not been repealed.
This Court in its judgment dated 19.10.1984 State of Maharashtra vs. Abhay
& Ors [AIR 1985 SC 328] directed that the State of Maharashtra should
devise and frame a more rational method for obtaining much in advance a
certificate on the strength of which a reserved seat is claimed. But the High
Court committed an error in interpreting the scope of the Circular dated
31.7.1981 that the School Leaving Certificate was conclusive of the caste.
This
interpretation was plainly inconsistent with the instructions and resolutions
stated above. Further it may be also noticed here that the Joint Parliamentary
Committee did not make any recommendation to include 'Halba-Koshti' in the
Scheduled Tribes Order. At any rate the Scheduled Tribes Order must be read as
it is until it is amended under clause (2) of Article 342. In this view also,
the circulars/ resolutions /instructions will not help the respondent no. 1 in
any way. Even otherwise, as already stated above, on facts found and
established the authorities have rejected the claim of the respondent no. 1 as
to the Caste Certificate. The power of the High Court under Article 227 of the
Constitution of India, while exercising the power of judicial review against an
order of inferior tribunal being supervisory and not appellate, the High Court
would be justified in interfering with the conclusion of the tribunal, only
when it records a finding that the inferior tribunal's conclusion is based upon
exclusion of some admissible evidence or consideration of some inadmissible
evidence or the inferior tribunal has no jurisdiction at all or that the
finding is such, which no reasonable man could arrive at, on the materials on
record. The jurisdiction of the High Court would be much more restricted while
dealing with the question whether a particular caste or tribe would come within
the purview of the notified Presidential Order, considering the language of
Articles 341 and 342 of the Constitution. These being the parameters and in the
case in hand, the Committee conducting the inquiry as well as the Appellate
Authority, having examined all relevant materials and having recorded a finding
that respondent no. 1 belong to 'Koshti' caste and has no identity with the
'Halba/Halbi', which is the Scheduled Tribe under Entry 19 of the Presidential
Order, relating to State of Maharashtra, the High Court exceeded its
supervisory jurisdiction by making a roving and in-depth examination of the
materials afresh and in coming to the conclusion that 'Koshtis' could be
treated as 'Halbas'. In this view the High Court could not upset the finding of
fact in exercise of its writ jurisdiction. Hence, we have to essentially answer
the question no. 2 also in the negative. Hence it is answered accordingly.
The
arguments advanced before the High Court on behalf of an intervener relying on
Articles 162, 256 to 258 and 339(2) of the Constitution of India that
instructions issued by the Central Government in the matter have overriding
effect over the instructions issued by the State Government, was lightly
brushed aside on the ground that this aspect assured little importance in the
view taken by the High Court that the State Government was bound by the
circulars issued by it. We have already expressed above the view in the light
of Articles 341 and 342 of the Constitution that a Scheduled Tribes Order can
be amended only by the Parliament. Hence it is not possible to accept that
orders/circulars issued by the State Government, which have the effect of
amending Scheduled Tribes Order, were binding on the Government or other affected
parties.
In
order to protect and promote the less fortunate or unfortunate people who have
been suffering from social handicap, educational backwardness besides other
disadvantages, certain provisions are made in the Constitution with a view to
see that they also have the opportunity to be on par with others in the
society.
Certain
privileges and benefits are conferred on such people belonging to Scheduled
Tribes by way of reservations in admission to educational institutions
(professional colleges) and in appointments in services of State. The object
behind these provisions is noble and laudable besides being vital in bringing a
meaningful social change. But, unfortunately, even some better placed persons
by producing false certificates as belonging to Scheduled Tribes have been
capturing or cornering seats or vacancies reserved for Scheduled Tribes
defeating the very purpose for which the provisions are made in the
Constitution. The Presidential Orders are issued under Articles 341 and 342 of
the Constitution recognizing and identifying the needy and deserving people
belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the
constitutional purpose of availing benefits of reservation in the matters of
admissions and employment. If these benefits are taken away by those for whom
they are not meant, the people for whom they are really meant or intended will
be deprived of the same and their sufferings will continue. Allowing the
candidates not belonging to Scheduled Tribes to have the benefit or advantage
of reservation either in admissions or appointments leads to making mockery of
the very reservation against the mandate and the scheme of the Constitution.
In the
light of what is stated above, the following positions emerge:-
1. It
is not at all permissible to hold any enquiry or let in any 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 concerned Entry in the Constitution (Scheduled
Tribes) Order, 1950.
2. The
Scheduled Tribes Order must be read as it is.
It is
not even permissible to say that a tribe, sub-tribe, part of or group of any
tribe or tribal community is synonymous to the one mentioned in the Scheduled
Tribes Order if they are not so specifically mentioned in it.
3. A
notification issued under Clause (1) of Article 342, specifying Scheduled
Tribes, can be amended only by law to be made by the Parliament. In other
words, any tribe or tribal community or part of or group within any tribe can
be included or excluded from the list of Scheduled Tribes issued under Clause
(1) of Article 342 only by the Parliament by law and by no other authority.
4. It
is not open to State Governments or courts or tribunals or any other authority
to modify, amend or alter the list of Scheduled Tribes specified in the
notification issued under Clause (1) of Article 342.
5.
Decisions of the Division Benches of this Court in Bhaiya Ram Munda vs. Anirudh
Patar & others (1971 (1) SCR 804) and Dina vs. Narayan Singh (38 ELR 212),
did not lay down law correctly in stating that the enquiry was permissible and
the evidence was admissible within the limitations indicated for the purpose of
showing what an entry in the Presidential Order was intended to be. As stated
in position (1) above no enquiry at all is permissible and no evidence can be
let in, in the matter.
Having
regard to all aspects and for the reasons stated above, this appeal merits
acceptance. Hence, it is allowed. The impugned judgment and order of the High
Court are set aside.
Respondent
no. 1 joined the medical course for the year 1985- 86. Almost 15 years have
passed by now. We are told he has already completed the course and may be he is
practicing as doctor. In this view and at this length of time it is for
nobody's benefit to annul his Admission.
Huge
amount is spent on each candidate for completion of medical course. No doubt,
one Scheduled Tribe candidate was deprived of joining medical course by the
admission given to respondent no. 1. If any action is taken against respondent
no. 1, it may lead depriving the service of a doctor to the society on whom
public money has already been spent. In these circumstances, this judgment
shall not affect the degree obtained by him and his practicing as a doctor. But
we make it clear that he cannot claim to belong to the Scheduled Tribe covered
by the Scheduled Tribes Order. In other words, he cannot take advantage of the
Scheduled Tribes Order any further or for any other constitutional purpose.
Having regard to the passage of time, in the given circumstances, including
interim orders passed by this Court in SLP (C) No. 16372/85 and other related
affairs, we make it clear that the admissions and appointments that have become
final, shall remain unaffected by this judgment.
No
costs.
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