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CASE NO.:
Appeal (civil) 2294 1986
PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
MILIND & ORS.
DATE OF JUDGMENT: 28/11/2000
BENCH:
S.N.Pattanaik,, S.V.Patil, Dorasmy Raju, S.R.Babuu, D.P.Mohapatro
JUDGMENT:
L.....I.........T.......T.......T.......T.......T.......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."
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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’
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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
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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."
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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
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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,
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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
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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)
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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
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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."
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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."
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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
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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
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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
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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
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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
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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
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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:-
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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.
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No costs.
CASE NO.:
Appeal (civil) 2294 1986
PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
MILIND & ORS.
DATE OF JUDGMENT: 28/11/2000
BENCH:
S.N.Pattanaik,, S.V.Patil, Dorasmy Raju, S.R.Babuu, D.P.Mohapatro
JUDGMENT:
L.....I.........T.......T.......T.......T.......T.......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."
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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’
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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
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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."
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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
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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,
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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
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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)
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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
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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."
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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."
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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
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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
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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
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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
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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
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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
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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:-
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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.
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No costs.
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