TMI Blog2000 (11) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent is granted. The name of the Union of India may be shown as the party respondent when the matter is listed. Both the sides agree that this matter involves a question which has been decided by the Constitution Bench consisting of 5 Hon ble Judges of this Court and that there is also a subsequent judgment of a Division Bench of 2 Hon ble Judges of this Court. One of the points raised is that there is a conflict between the two judgments. Under the circumstances, both sides state that this is a fit case for being referred to the Constitution Bench. We accordingly direct that this matter be placed before the Hon ble Chief Justice for placing the same before the Constitution Bench. Both the sides state that the matter is very urgent and the matter be listed for early hearing. This request may, however, be addressed to the Constitution Bench. Pursuant to the said order, the appeal is placed before us for consideration and decision. The facts briefly stated to the extent they are relevant and required for the decision are the following. The respondent no. 1 herein filed the Writ Petition No. 2944/84 at the Nagpur Bench of the Bombay High Court to quash the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who accepted that these entries related to him, his father and his step-sister Shantabai, daughter of Bajirao Koshti. In his statement, he further admitted that all his relatives have married in their own caste and there was no instance of inter-caste marriage having taken place; in the records, name of the caste and occupation were separately mentioned. His own explanation was that entry Koshti found in the documents did not indicate caste but it only pertains to occupation. The appellate authority looking to various other entries in the register found that the caste and occupation are separately mentioned. It was also noticed that the respondent no. 1 did not tender any evidence to show that he belonged to Halba-Koshti sub-caste. The appellate authority referring to various imperial Gazetteers and other public documents for a period of 150 years came to the conclusion that the Koshti was an independent and distinct caste having no relationship or identity with the Halba / Halbi Scheduled Tribe. It also took note of the Circular dated 13.2.1984 issued by the Central Government that Halba-Koshtis were seeking undue benefits of reservation by posing themselves as Halba / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of evidence could not be disturbed by the High Court; (7) it was also not correct on the part of the High Court to give undue importance to the resolutions / circulars issued by the State Government contrary to law and without authority of law concerning the subject; and (8) it was not correct to say that the issue involved in the case was already closed when the same question was kept open by this Court in the State of Maharashtra vs. Abhay Sharavan Parathe (AIR 1985 SC 328). Per contra, Mr. G.L. Sanghi, the learned senior counsel for the respondent no. 1 made submissions supporting and justifying the ultimate conclusion arrived at in the impugned judgment and order of the High Court. According to him, the old records relating to the period when there was no controversy, clearly supported the case of the respondent no. 1 and the school leaving certificate issued to the respondent no. 1 was valid. He also submitted that it was open to show that a particular caste was part of Scheduled Tribes coming within the meaning and scope of tribal community even though it is not described as such in the Presidential Order. The learned senior counsel was not in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by any subsequent notification. By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Casts or Schedules Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said Articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words castes or tribes in the expression Scheduled Castes and Scheduled Tribes are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Article 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342 is to be determined looking to them as they are. Clause (2) of the said Articles does not permit any one to seek modification of the said orders by leading evidence that the caste / tribe (A) alone is mentioned in the Order but caste / tribe (B) is also a part of caste / tribe (A) and as such caste / tribe (B) should be deemed to be a scheduled Caste / Scheduled Tribe as the case may be. It is only the Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the Entries in the Schedules pertaining to each State whenever one caste / tribe has another name it is so mentioned in the brackets after it in the Schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Schedule Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said Articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. (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 Basava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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 constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons 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, incl ..... 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