Kumar Sharma Vs. Union Public Service Commission & Ors  Insc 700 (19 October 2006)
Bhan & Markandey Katju
Writ Petition (C) No. 173 of 2002 and Writ Petition (C) No. 488 of 2000 BHAN,
judgment shall dispose of Civil Appeal No. 5483 of 2000 and Writ Petition Nos.
173 of 2002 and 488 of 2000 filed under Article 32 of the Constitution of
India. Point involved in all these cases being the same, they are disposed of
by a common judgment.
facts are taken from Civil Appeal No. 5483 of 2000.
appeal has been filed by a member of "Lohar" community from the State
of Bihar. "Lohars" are being
treated as Other Backward Classes whereas he claims to be a member of Scheduled
Tribes under the Scheduled Castes and Scheduled Tribes Order. The point in
issues is concluded against the appellant by a judgment of this Court in
Others, 1996 (3) SCC 576. The appellant seeks to get the judgment in the case
of Nityanand (supra) referred to a larger Bench by contending that the said
judgment is wrong and needs reconsideration.
Kumar Sharma, the appellant herein, was a candidate for the Civil Services
Examinations held during the years 1991, 1992, 1993 & 1994. He claimed to
belong to "Lohar" community, which according to him was a Scheduled
Tribe in the State of Bihar. While considering the candidature
of the appellant and while verifying his claim as belonging to Scheduled Tribe
in the State of Bihar, the Union Public Service
Commission prime facie came to the conclusion that the "Lohar"
community was not included in the list of Scheduled Tribes for the State of Bihar issued by the Government of India.
The Commission addressed a communication to the Deputy Commissioner, Ranchi to ascertain if "Lohar"
community was recognized as a Scheduled Tribe in Bihar. The Deputy Commissioner in his reply indicated that "Lohar"
community in the Bihar was recognized as "Backward
Class" only and not as 'Schedule Tribe". In the light of this, the
appellant was asked by the Commission to clarify the latest position in respect
of the community claim.
appellant thereafter filed Writ Petition No. 2600 of 1992 in the High Court of Patna
at Ranchi for a direction to the State
Government to issue him a caste certificate as 'Scheduled Tribe' on his being a
member of "Lohar" community. The Court directed the Deputy
Commissioner, Dhanbad to issue a provisional caste certificate describing the
appellant as "Lohar" belonging to the Scheduled Tribe with the
stipulation that the same shall be subject to the final result of the writ
petition pending in the High Court. The Bench issued an interim direction on
18.02.1993 directing the Commission to permit the appellant to appear in the
examination provisionally as a member of the "Lohar" community as a
'Scheduled Tribe'. As per interim directions issued by the High Court, the
Commission treated the appellant along with 4 other candidates similarly placed
as belonging to Scheduled Tribe provisionally, subject to proving their claim.
The performance of these candidates including the appellant in the Civil
Services (Main) Examination, 1994 was assessed on
relaxed standards meant for Scheduled Tribe candidates. The result of the
written part of the Civil Services (Main) Examination, 1994 was declared by the
Commission on 27.04.1995 and none of the five candidates including the
appellant could qualify the written examination on the basis of their
performance even as Scheduled Tribe candidates. The appellant had earlier
failed to qualify the Civil Services (Main)
Examination for the year 1993 even though he was treated as Scheduled Tribe
Petition came up for final hearing in July, 1999.
Single Judge of the High Court in its judgment dated 5.7.1999 held that the
question, as to whether "Lohar" was a Scheduled Tribe in the State of
Bihar stands concluded by a judgment of this Court in Nityanand's case (supra)
and accordingly held that "Lohar" community is "Other Backward
Class" (OBC) and not a Scheduled Tribe.
appellant being aggrieved filed letters patent appeal in the High Court which
has been dismissed by the impugned order.
the Constitution (Scheduled Tribes) Order, 1950 issued in exercise of powers
conferred under Article 342 (a) of the Constitution of India, at S. No. 20 the
tribe "Lohara" was mentioned as a Scheduled Tribe for the State of Bihar. The first Backward Classes
Commission was set up in the year 1953 known as the Kaka Kalelkar Commission.
According to the report of the Kaka Kalelkar Commission, amongst the list of
Backward Classes, "Lohar" was shown at S. No. 60.
the Commission report also dealt with the Scheduled Tribe Order and the
Commission recommended that "Lohra" be added with "Lohara"
in the Scheduled Tribe Order, 1950.
the Kaka Kalelkar Commission report, the Scheduled Castes and Scheduled Tribes
Order (Amendment) Act, 1956 was enacted which was brought into force with
effect from 25.09.1956 and for Bihar, entry 20
was substituted to read as "Lohara" or "Lohra". Thus, right
upto 1976 there was no ambiguity in the Scheduled Tribe Order as only "Lohara"
was initially considered as a Scheduled Tribe and with effect from 1956 "Lohara"
as well as "Lohra" were mentioned as Scheduled Tribe.
year 1976 the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976
was passed and in the English version of the same, viz. entry 22 the position
as existing from 1956 was maintained. "Lohara" and "Lohra"
were stated to be Scheduled Tribes. However, in the Hindi translation of the
said entry "Lohara" was translated as "Lohar". Thus the
Hindi translation had "Lohar" and "Lohra" as two Scheduled
Tribes. After the 1976 Amendment, members of the "Lohar" community
started claiming themselves to be members of Scheduled Tribe even though they
had been identified as a backward class as early as in the year 1955 by Kaka Kalelkar
of the ambiguity in the Hindi translation of the 1976 Scheduled Tribe Order,
members of "Lohar" community claimed themselves to be members of
Scheduled Tribe. The first litigation which came to the Supreme Court on this
subject was Civil Appeal No. 4631 of 1990 in the case of for hearing before
three Judges of this Court. This Court disposed of the appeal on 12.9.1990 by
passing the following order:- " Special Leave granted.
short point raised in this appeal is as to whether the Central Administrative
Tribunal was right in holding that the appellant did not belong to the Lohar
community which has now been declared as a Scheduled Tribe in Chapra District
of Bihar. It is not in dispute that from 1976 onwards the community has been so
included but according to the Postal Department of Union of India, at the time
when the appellant entered service, the community had not been so included and,
therefore, the recruitment on the footing that he was a member of a scheduled
Tribe entitled to reservation was bad.
have looked into the record and have heard counsel for the parties. In view of
the accepted position that Lohar community is included in the Scheduled Tribe
from the date of amendment of the list in 1976 and the dispute as to whether
the community was known as "Lohar" or "Lohra" and if it was
the latter, it has been so included from before, we do not think the Tribunal
was justified in holding the view it has taken.
appeal is allowed and the order of the Tribunal is vacated. The appellant shall
now return to duty. The period between 16.12.1986 when the order removing him
was made and the date when he would join in terms of our declaration now he
shall be entitled to 50% of his salary. In regard to all other service
benefits, his service shall be treated to be continuous.
decision may not be taken as a precedent. No costs." [Emphasis supplied]
It may be noted that at that point this Court did not notice the discrepancy
between the English and the Hindi translation of the Scheduled Tribes Order and
proceeded on the premise that "Lohar" being mentioned in the Hindi
version of the Order, the appellant was entitled to get the benefit of being a
Scheduled Tribe. Even the counsel appearing on behalf of the Union of India did
not point out to the Court the discrepancy and the order was passed treating
the "Lohars" as members of the Scheduled Tribe. Rather the Union of
India accepted the position that "Lohar" community is included in the
Scheduled Tribe. This order was passed by the Court without any contest.
question regarding the claim of "Lohar" community to be considered as
Scheduled Tribe came up before this Court in Nityanand Sharma's case (supra),
which was initially listed before the two Judge-Bench which upon being showen
the case of Shambhu Nath (supra) thought it fit to refer the matter to three
Judges. Incidentally, one of the Judges in the case of Nityanand Sharma (supra)
was also a party to the decision in the case of Shambhu Nath (supra). The Court
in Nityanand Sharma's case (supra) examined in detail as to whether there were
three castes/tribes by the nomenclature of "Lohar", "Lohara"
and "Lohra" or whether "Lohar" and "Lohara" were
one and the same thing and if "Lohar" and "Lohara" were two
different castes/tribes then which one of them would qualify as a tribe or
whether both will qualify as Scheduled Tribe.
Court after noticing the ambiguity existing in the Hindi translation of 1976
Scheduled Tribe Order held that whereas "Lohara" and "Lohra"
belonged to the Scheduled Tribe, the "Lohars" in State of Bihar belonged to the Other Backward
Court was called upon to declare as to whether the Hindi translation was
correct or original English text was correct. For this limited purpose the
Bench looked into the authoritative ethnographic survey conducted in India by H.H. Risley. From the said
survey the Court observed that "Lohar" is a sub-caste of Barhai who
work in iron. In Risley's Ethnographic Glossary the "Lohar" community
has been dealt with in great detail. In the same Glossary "Lohara"
and "Lohra" are mentioned as tribe of Chota Nagpur. The Court took
notice of Article 348 (1)(b) of the Constitution of India which provides that the
authoritative text of all bills to be introduced or amendments thereof to be
moved in either House of the Parliament shall be in English language. The Bench
after a detailed and considered judgment held that the original version which
was in English was the authoritative text whereas the Hindi was the translated
version. It was concluded that in the Hindi version there was some defect in
the translation because of which the "Lohar" community had been
claiming the advantage of being a "Scheduled Tribe" when actually
they were only a backward class and thus could not be given the benefit of
reservation as a Scheduled Tribe. It was further held by that Sambhu Nath's
case (supra) could not be treated as authoritative in point as the same was
based on concession.
Sharma's judgment (supra), an effort was made by the members of the "Lohar"
community to claim themselves as Scheduled Tribe and the matter came up to the
Supreme Court. A bench of two judges in Vinay Prakash & order reaffirmed
the view taken in the Nityanand Sharma's case (supra) and held that there was
no question of the "Lohar" community being given the benefit of being
Scheduled Tribe. The bench refused to refer the case of Nityanand Sharma's
(supra) to a larger bench. This is the second attempt being made by the members
of the "Lohar" community to get the decision in Nityanand Sharma's
case (supra) re- opened and referred to a larger bench for reconsideration.
is no dispute on the proposition that if the Presidential Notification does not
contain any specific class or tribe or a part of, then 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. The Courts must read the lists of Schedule Castes and
Schedule Tribes under Article 341 and 342 read with Article 366 ( 24) and (25)
as they find them and accept their ordinary meaning. Neither the Government nor
the judiciary can add or subtract to the List of Scheduled Castes and Scheduled
Tribes. But, the Court would have the limited jurisdiction to the 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. To that
limited extent, the court would have the jurisdiction but, otherwise, the court
is devoid of power to include in or exclude from or substitute or declare
synonyms to the Scheduled Caste or Scheduled Tribe or parts thereof or group of
such castes or tribes.
Rajeev Dhavan, learned senior counsel appearing for the appellant has contended
that Nityanand's case (supra) was wrongly decided because:
case was relied on social data selected by the Judges whereas such selection
was prohibited by law;
case failed to take into consideration the Hindi Text which was authoritative
in its own language.
not find any substance in the submissions made by Shri Rajeev Dhavan. In Nityanand's
case this Court examined in detail as to whether there were three casts/tribes
by the nomenclature Lohra, Lohara and Lohar or whether Lohar and Lohara were
one and the same thing and if Lohar and Lohara were two different castes/tribes
then which one of them would qualify as a tribe or whether both will qualify as
a tribe. This Court after detailed consideration came to the conclusion that
the ambiguity was caused because of Hindi translation of the 1976 Scheduled
Tribe Order. The Court was called upon to declare as to whether the Hindi
translation was correct or the original English text was correct. For this
limited purpose the Court looked at the Ethnographic Survey conducted in India by H.H. Risley. After taking into
consideration the said survey, the Court observed that Lohar is a sub-caste of Barhai
who works in iron. In Risley's Ethnographic Glossary the Lohar Community has
been dealt with in great detail. In the same Glossary Lohara and Lohra are
mentioned as tribes of Chota Nagpur. The Court did not refer to or rely upon
the text of Risley to include or exclude a caste in the Presidential Order or
amend or alter the Presidential Order. Risley's survey was examined to remove
the ambiguity which had crept in because of the contradictory entries in
English and Hindi versions of the Presidential Order.
Court after taking notice of Article 348 (1) (b) of the Constitution of India
which provides that the authoritative text of all Bills to be introduced or
amendments thereof to be moved in either House of the Parliament shall be in
English language came to the conclusion that the Hindi version was a translated
version and the original version was the authoritative text and in the Hindi
version there was some defect in translation because of which Lohar Community
had been claiming the advantage of being a Scheduled Tribe when actually they
were only a backward class and thus could not be given the benefit of
reservation as a Scheduled Tribe. It was observed in Nityanand's case (supra)
"19. Article 348(1)(b) of the Constitution provides that notwithstanding
anything in Part II (in Chapter II Articles 346 and 347 relate to regional
languages) the authoritative text of all bills to be introduced and amendments
thereto to be moved in either House of Parliament ..of all ordinances
promulgated by the President.....and all orders, rules, regulations and bye
laws issued under the Constitution or under any law made by the Parliament,
shall be in the English language. By operation of sub-article (3) thereof with
a non obstante clauses, where the Legislature of a State has prescribed any
language other than the English language for use in Bills introduced in, or
Acts passed by, the legislature of the State or in Ordinances promulgated by
the Governor of the State or in any order, rule regulation or bye-law referred
to in paragraph (iii) of that sub- clause, a translation of the same in the
English language published under the authority of the Governor of the State in
the official Gazette of that State shall be deemed to be the authoritative text
thereof in the English language under this article. Therefore, the Act and the
Schedule thereto are part of the Act, as enacted by the Parliament in English
language. It is the authoritative text.
the Schedules were translated into Hindi, the translator wrongly translated Lohara
as Lohar omitting the letter 'a' while Lohra is written as mentioned in English
version. It is also clear when we compare Part XVI of the Second Schedule
relating to the State of West
Bengal, the word Lohar
both in English as well as in the Hindi version was not mentioned.
would take judicial notice of Acts of Parliament and would interpret the
Schedule in the light of the English version being an authoritative text of the
Act and the Second Schedule." We are in the respectfully agreement with
the view taken in Nityanand's case.
senior counsel appearing for the appellant contends that after the coming into
force of the Official Languages Act, 1963 the Hindi version was the
authoritative text and in the case of ambiguity between Hindi and English
versions, the Hindi version would prevail. Article 348 of the Constitution
clearly provides English to be the authoritative text in respect of Acts of
Parliament, amendment to Acts subject to any law made by the Parliament. The
Official Languages Act, 1963 vide Section 3 thereof provides for continuance of
English language for official purposes of Union
and for use in Parliament. Section 5 provides for a Hindi translation of all
Central Acts and Ordinances promulgated by the President or if any order or
rule or regulation or bye-laws issued under the Constitution or under any
6 deals with State Act with which we are not concerned in the instant case.
From the conjoint reading of Article 348 of the Constitution and Sections 3 and
5 of the Official Languages Act, 1963, English continues to remain the
authoritative text in respect of the Acts of Parliament.
attempt was made to get the judgment in Nityanand's case re-opened and
considered by the larger Bench in Vinay Prasad's case (supra). Shri Rajeev Dhavan,
learned Senior counsel appearing for the appellant in the instant case
incidentally was the counsel in the said case as well.
similar to the one which has been made before us had been made in Vinay
Prasad's case (supra) case as well.
Division Bench rejected the said contention. We are in agreement with the view
taken in the Vinay Prasad's case (supra) as well.
the reasons stated above we do not find any merit in the civil appeal and the
writ petitions and dismiss the same with costs throughout.