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CASE NO.:

Appeal (civil) 2294 of 1986

PETITIONER:

STATE OF MAHARASHTRA

RESPONDENT:

MILIND & ORS.

DATE OF JUDGMENT: 28/11/2000

BENCH:

G.B.PATTANAIK & S.RAJENDRA BABU & D.P.MOHAPATRA & DORAISWAMY RAJU & S.V.PATIL

JUDGMENT:

JUDGMENT

DELIVERED BY:

S.V.PATIL,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'

sub-caste. The appellate authority referring to various

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imperial Gazetteers and other public documents for a period

of 150 years came to the conclusion that the 'Koshti' was an

independent and distinct caste having no relationship or

identity with the 'Halba'/'Halbi' Scheduled Tribe. It also

took note of the Circular dated 13.2.1984 issued by the

Central Government that 'Halba-Koshtis' were seeking undue

benefits of reservation by posing themselves as

'Halba'/'Halbi' Scheduled Tribe and in the light of

clinching evidence the appellate authority felt itself bound

to hold that the respondent no. 1 did not belong to the

'Halba' Scheduled Tribe and declined to give presumptive

value to the school leaving certificate of the respondent

no. 1 as postulated in the Circular dated 31.07.1981, in

the face of overwhelming evidence and circumstances to the

contrary. Hence the respondent no. 1 filed the writ

petition as already mentioned above.

The High Court allowed the writ petition and quashed

the impugned orders inter alia holding that it was

permissible to enquire whether any sub-division of a tribe

was a part and parcel of the tribe mentioned therein and

that 'Halba-Koshti' is a sub-division of main tribe

'Halba'/'Halbi' as per Entry no. 19 in the Scheduled Tribe

Order applicable to Maharashtra. Hence the State of

Maharashtra has came up in appeal by special leave,

questioning the validity and correctness of the order of the

High Court allowing the writ petition of the respondent no.

1.

Mr. S.K. Dholakia, the learned senior counsel for

the appellant, urged that (1) the High Court committed an

error in holding that it was permissible to hold an enquiry

whether a particular group is a part of the Scheduled Tribe

as specified in the Scheduled Tribe Order; (2) the High

Court was not right in saying that the decision in Bhaiya

Ram Munda vs. Anirudh Patar (1971)SCR 804) laid down the

correct principle of law contrary to the Constitution Bench

decisions of this Court as to the scope of enquiry and the

power to amend the Scheduled Castes/Scheduled Tribes Order;

(3) the High Court misinterpreted the report of the Joint

Committee of the Parliament placed before it when

representations for inclusion of "Halba Koshti" in the

Scheduled Tribes Order were rejected; (4) the High Court

also committed an error in invoking and applying the

principle of stare decisis to the facts of the case in hand

particularly when the earlier pronouncements were manifestly

incorrect and were rendered without having the benefit of

law laid down by this Court; (5) the High Court also erred

in setting aside the orders of respondents 5 and 6 which

were made on proper and full consideration of evidence and

authorities; (6) the findings of fact recorded by the

authorities based on proper and objective assessment of

evidence could not be disturbed by the High Court; (7) it

was also not correct on the part of the High Court to give

undue importance to the resolutions / circulars issued by

the State Government contrary to law and without authority

of law concerning the subject; and (8) it was not correct

to say that the issue involved in the case was already

closed when the same question was kept open by this Court in

the State of Maharashtra vs. Abhay Sharavan Parathe (AIR

1985 SC 328).

Per contra, Mr. G.L. Sanghi, the learned senior

counsel for the respondent no. 1 made submissions

supporting and justifying the ultimate conclusion arrived at

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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

Orders issued under clause (1) of Articles 341 and 342 is to

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be determined looking to them as they are. Clause (2) of

the said Articles does not permit any one to seek

modification of the said orders by leading evidence that the

caste / tribe (A) alone is mentioned in the Order but caste

/ tribe (B) is also a part of caste / tribe (A) and as such

caste / tribe (B) should be deemed to be a scheduled Caste /

Scheduled Tribe as the case may be. It is only the

Parliament that is competent to amend the Orders issued

under Articles 341 and 342. As can be seen from the Entries

in the Schedules pertaining to each State whenever one caste

/ tribe has another name it is so mentioned in the brackets

after it in the Schedules. In this view it serves no

purpose to look at gazetteers or glossaries for establishing

that a particular caste/tribe is a Schedule Caste/Scheduled

Tribe for the purpose of Constitution, even though it is not

specifically mentioned as such in the Presidential Orders.

Orders once issued under clause (1) of the said Articles,

cannot be varied by subsequent order or notification even by

the President except by law made by Parliament. Hence it is

not possible to say that State Governments or any other

authority or courts or tribunals are vested with any power

to modify or vary said Orders. If that be so, no enquiry is

permissible and no evidence can be let in for establishing

that a particular caste or part or group within tribes or

tribe is included in Presidential Order if they are not

expressly included in the Orders. Since any exercise or

attempt to amend the Presidential Order except as provided

in clause (2) of Articles 341 & 342 would be futile, holding

any enquiry or letting in any evidence in that regard is

neither permissible nor useful.

In the case on hand, we are concerned with a Scheduled

Tribe. In exercise of the power conferred on him, the

President issued the Constitution (Scheduled Tribes) Order,

1950 (for short 'the Scheduled Tribes Order'), which has

been amended from time to time. By virtue of Clause (2),

Parliament passed in 1976 the Scheduled Cates and Scheduled

Tribes Orders (Amendment) Act, 1976 (Act 108/76). In the

Order relating to Maharashtra,(Part IX), Entry 19 relates to

'Halba'/'Halbi'. Few Scheduled Tribes listed in Part IX of

the Schedule relating to State of Maharashtra are given

below, for example -

Part IX - Maharashtra

1) Andh 2) Baiga ................. 6) Bharia Bhumia,

Bhuinhar Bhumia, Pando ................. 8) Bhil, Bhil

Garasia, Dholi Bhil, Dungri Bhil, Dungri Garasia, Mewasi

Bhil, Rawal Bhil, Tadvi Bhil, Bhagalia, Bhilala Pawra,

Vasava, Vasave ............... 12) Chodhara (excluding

Akola, Amravati, Bhandara, Buldana, Chandrapur, Nagpur,

Wardha, Yavatmal, Aurangabad, Bhir, Nanded, Osmanabad and

Parbhani districts) 13) Dhanka, Tadvi, Tetaria, Valvi

............... 16) Dubla, talavia Halpati 17) Gamit,

Gamta, Gavit, Mavchi, Padvi 18) Gond, rajgond, arakh,

arrakh, Agaria, Asur, Badi Maria, Bada Maria, Bhatola,

Bhimma, Bhuta, Koilabhuta, Koilabhuti, Bhar, Bisonhorn

Maria, Chota Maria, Dandami Maria, Dhuru, Dhurwa, Dhoba,

Dhulia, Dorla, Kaiki; Gatta, Gatti, Gaita, Gond Gowari,

Hill Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar,

Moghya, Mogia, Monghya, Mudia, Muria, Nagarchi, Naikpod,

Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia, Thotya, Wade

Maria, Vade Maria 19) Halba, Halbi ............ 21)

Kathodi, Katkari, Dhor Kathodi, Dhor Kathkari, Son Kathodi,

Son Katkari ............ 47) ............

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Although this Schedule is amended by law made by

Parliament, Entry 19 is not amended for adding

'Halba-Koshti' in the said Entry. Looking to the other

Entries extracted above in the same part, it is clear that

wherever a particular area was to be excluded, it is so done

by mentioning the same in the concerned (Entry relating to a

tribe). Similarly, if a tribe or tribal community had other

names and they were to be included in the Entry, it is done

by mentioning them specifically. When there was agitation

and representation to include 'Halba Koshti' within

Scheduled Tribes even long before Amendment Act, 1976 was

passed and the very fact that 'Halba-Koshti' was not

included within Entry 19 relating to 'Halba/Halbi',

negatives the claim of the Respondent No. 1. Further if

`Halba Koshti' was part of group or sub-tribe of 'Halba'/

'Halbi' Tribe, there was no need for representation to

include it before Parliamentary Joint Committee.

In the debates of Constituent Assembly (Official

Report, Vol. 9) while moving to add new Articles 300-A and

300-B after Article 300 (corresponding to Articles 341 and

342 of the Constitution), Dr. B.R.Ambedker explained as

follows :-

"The object of these two articles, as I stated, was to

eliminate the necessity of burdening the Constitution with

long lists of Scheduled Castes and Scheduled Tribes. It is

now proposed that the President in consultation with the

Governor or Ruler of a State should have the power to issue

a general notification in the Gazette specifying all the

Castes and Tribes or groups thereof deemed to be Scheduled

Castes and Scheduled Tribes for the purpose of this

privileges which have been defined for them in the

Constitution. The only limitation that has been imposed is

this: that once a notification has been issued by the

President, which, undoubtedly, he will be issuing in

consultation with and on the advice of the Government of

each State, thereafter, if any elimination was to be made

from the List so notified or any addition was to be made

that must be made by Parliament and not by the President.

The object is to eliminate any kind of political factors

having a play in the matter of the disturbance in the

Schedule so published by the President."

(emphasis supplied)

Thus it is clear that States have no power to amend

Presidential Orders. Consequently a party in power or the

Government of the day in a State is relieved from the

pressure or burden of tinkering with the Presidential Orders

either to gain popularity or secure votes. Number of

persons in order to gain advantage in securing admissions in

educational institutions and employment in State Services

have been claiming as belonging to either Scheduled Castes

or Scheduled Tribes depriving genuine and needy persons

belonging to Scheduled Castes and Schedules Tribes covered

by the Presidential Orders, defeating and frustrating to a

large extent the very object of protective discrimination

given to such people based on their educational and social

backwardness. Courts cannot and should not expand

jurisdiction to deal with the question as to whether a

particular caste, sub-caste; a group or part of tribe or

sub-tribe is included in any one of the Entries mentioned in

the Presidential Orders issued under Articles 341 and 342

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particularly so when in clause (2) of the said Article, it

is expressly stated that said orders cannot be amended or

varied except by law made by Parliament. The power to

include or exclude, amend or alter Presidential Order is

expressly and exclusively conferred on and vested with the

Parliament and that too by making a law in that regard. The

President had the benefit of consulting States through

Governors of States which had the means and machinery to

find out and recommend as to whether a particular caste or

tribe was to be included in the Presidential Order. If the

said Orders are to be amended, it is the Parliament that is

in a better position to know having means and machinery

unlike courts as to why a particular caste or tribe is to be

included or excluded by law to be made by Parliament.

Allowing the State Governments or courts or other

authorities or tribunals to hold enquiry as to whether a

particular caste or tribe should be considered as one

included in the Schedule of the Presidential Order, when it

is not so specifically included, may lead to problems. In

order to gain advantage of reservations for the purpose of

Articles 15(4) or 16(4) several persons have been coming

forward claiming to be covered by Presidential Orders issued

under Articles 341 and 342. This apart when no other

authority other than

the Parliament, that too by law alone can amend the

Presidential Orders, neither the State Governments nor the

courts nor tribunals nor any authority can assume

jurisdiction to hold enquiry and take evidence to declare

that a caste or a tribe or part of or a group within a caste

or tribe is included in Presidential Orders in one Entry or

the other although they are not expressly and specifically

included. A court cannot alter or amend the said

Presidential Orders for the very good reason that it has no

power to do so within the meaning, content and scope of

Articles 341 and 342. It is not possible to hold that

either any enquiry is permissible or any evidence can be let

in, in relation to a particular caste or tribe to say

whether it is included within Presidential Orders when it is

not so expressly included.

In B.Basavalingappa vs. D. Munichinnappa , a

Constitution Bench of this Court has held thus :-

"It may be accepted that it is not open to make any

modification in the Order by producing evidence to show (for

example) that though caste A alone is mentioned in the

Order, caste B is also a part of Caste A and therefore must

be deemed to be included in caste A. It may also be

accepted that wherever one caste has another name it has

been mentioned in brackets after it in the Order[see Aray

(Mala) Dakkal (Dokkalwar) etc.] Therefore generally speaking

it would not be open to any person to lead evidence to

establish that caste B (in the example quoted above) is part

of caste A notified in the Order. Ordinarily therefore it

would not have been open in the present case to give

evidence that the Voddar caste was the same as the Bhovi

caste specified in the Order for Voddar caste is not

mentioned in brackets after the Bhovi caste in the Order."

(emphasis supplied)

Thereafter looking to the peculiar circumstances of

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the case, the Court went on to say that :-

"The difficulty in the present case arises from the

fact (which was not disputed before the High Court) that in

the Mysore State as it was before the re-orgnisation of 1956

there was no caste known as Bhovi at all. The Order refers

to a scheduled caste known as Bhovi in the Mysore State as

it was before 1956 and therefore it must be accepted that

there was some caste which the President intended to include

after consultation with the Rajpramukh in the Order when the

Order mentions the caste Bhovi as a scheduled caste. It

cannot be accepted that the President included the caste

Bhovi in the Order though there was no such caste at all in

the Mysore State as it existed before 1956. But when it is

not disputed that there was no caste specifically known as

Bhovi in the Mysore State before 1956, the only course open

to courts to find out which caste was meant by Bhovi is to

take evidence in that behalf. If there was a caste known as

Bhovi as such in the Mysore State as it existed before 1956,

evidence could not be given to prove that any other caste

was included in the Bhovi caste. But when the undisputed

fact is that there was no caste specifically known as Bhovi

in the Mysore State as it existed before 1956 and one finds

a caste mentioned as Bhovi in the Order, one has to

determine which was the caste which was meant by that word

on its inclusion in the Order. It is this peculiar

circumstance therefore which necessitated the taking of

evidence to determine which was the caste which was meant by

the word "Bhovi" used in the Order, when no caste was

specifically known as Bhovi in the Mysore State before the

re-organisation of 1956."

Again a Constitution Bench of this Court in a later

decision in Bhaiyalal vs. Harikishan Singh and Others did

not accept the plea of the appellant that although he was

not a Chamar as such he could claim the same status by

reason of the fact that he belonged to Dohar Caste which is

sub-caste of Chamar. Even after referring to the case of

Basavallingappa (supra) it was held that an enquiry of that

kind would not be permissible in the light of the provisions

contained in Article 341 of the Constitution. In that case

the appellant's election was challenged inter alia on the

ground that he belonged to the Dohar Caste which was not

recognized as a Scheduled Caste for the district in question

and so his declaration that he belonged to the Chamar Caste

which was a Scheduled Caste was improper and was illegally

accepted by the Returning Officer. The Election Tribunal

declared that the election was invalid. On appeal the High

Court confirmed the same. This Court also dismissed the

appeal pointing out that the plea that the Dohar Caste is a

sub-caste of the Chamar Caste, could not be entertained in

view of the Constitution Scheduled Castes Order, 1950 issued

by the President under Article 341 of the Constitution. It

is also stated that in order to determine whether or not a

particular caste is a Scheduled Caste within the meaning of

Article 341, one has to look at the public notification

issued by the President in that behalf. The notification

referred to Chamar, Jatav or Mochi. The Court observed that

the enquiry, which the Election Tribunal could hold was

whether or not the appellant is a Chamar, Jatav or Mochi and

held thus :-

"The plea that though the appellant is not a Chamar as

such, he can claim the same status by reason of the fact

that he belongs to the Dohar caste which is a sub-caste of

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the Chamar caste, cannot be accepted. It appears to us that

an enquiry of this kind would not be permissible having

regard to the provisions contained in Article 341."

(emphasis supplied)

Referring to the case of Basavallingappa (supra) the

Court explained thus :-

"In the case of B.Basavalingappa vs. D.

Munichinnappa & Ors. this Court had occasion to consider a

similar question. The question which arose for decision in

that case was whether respondent no. 1, though Voddar by

caste, belonged to the scheduled caste of Bhovi mentioned in

the Order, and while holding that an enquiry into the said

question was permissible, the Court has elaborately referred

to the special and unusual circumstances which justified the

High Court in holding that Voddar caste was the same as the

Bhovi caste within the meaning of the Order; otherwise the

normal rule would be :"It may be accepted that it is not

open to make any modification in the Order by producing

evidence to show, for example, that though caste A alone is

mentioned in the Order, caste B is also a part of caste a

and, therefore, must be deemed to be included in caste A".

That is another reason why the plea made by the appellant

that the Dohar caste is a sub-caste of the Chamar caste and

as such must be deemed to be included in the Order, cannot

be accepted." (emphasis supplied)

It may be noticed that in both the Constitution Bench

judgments (supra), P.B.Gajendragadkar, C.j., K.N. Wanchoo,

and M.Hidayatullah JJ. were common members.

In Parasram and Anr. vs. Shivchand and Ors.

referring to the two Constitution Bench judgments of this

Court in Basavallingappa and Bhaiyalal aforementioned, this

Court declared that :-

"These judgments are binding on us and we do not

therefore think that it would be of any use to look into the

gazetteers and the glossaries on the Punjab castes and

tribes to which reference was made at the Bar to find out

whether mochi and chamar in some parts of the State at least

meant the same caste although there might be some difference

in the professions followed by their members, the main

difference being that Chamars skin dead animals which mochis

do not. However, that may be, the question not being open

to agitation by evidence and being one the determination of

which lies within the exclusive power of the President, it

is not for us to examine it and come to a conclusion that if

a person was in fact a mochi, he could still claim to belong

to the scheduled caste of chamars and be allowed to contest

an election on that basis."

In that case a good deal of evidence was adduced and

arguments were advanced as to whether the word `Chamar' and

`Mochi' were synonymous. This Court further observed :-

"Once we hold that it is not open to this Court to

scrutinize whether a person who is properly described as a

mochi also falls within the caste of chamars and can

describe himself as such, the question of the impropriety of

the rejection of his nomination paper based on such

distinction disappears."

In two cases, Bhaiya Ram Munda vs. Anirudh Patar &

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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

invalidated the caste certificate issued to respondent no.

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1 as belonging to 'Halba' Scheduled Tribe. The Additional

Tribal Commissioner, Nagpur Division, Nagpur (R5), on

further enquiry in the appeal filed by the respondent no. 1

dismissed the appeal by a well-merited order passed on

detailed and objective consideration and evaluation of the

evidence placed on record. The feeble argument based on

circulars issued by State Government advanced on behalf of

the respondent no. 1 was that the old records relating to

undisputed point of time and the school certificate should

have been accepted, was rejected for the reasons stated in

the orders passed by the Director of Social Welfare and the

Additional Tribal Commissioner - the appellate authority.

The Scrutiny Committee, as is evident from its decision

dated 16.11.1983, found that the word `Halba' in the service

book entry in respect of uncle of respondent no. 1 was

written in a different ink and it was unworthy of credence;

the census report of the year 1931 of the Khapa town did not

show even a single digit population of Halba/Halbi Tribe;

the respondent no. 1 gave answer to the questionnaire that

he was not aware about the traits and characteristics,

customs, deities, religious beliefs etc. of the Halba

Tribe. On further enquiry in the appeal, it was revealed

that the entry at Sr. No.3065 in the Dakhal Kharij Register

of the Municipal Primary School, Shendurjunaghat, Amravati

of the year 1944-45 shows that the caste of Sharad, son of

Bajirao, father of the respondent no. 1 was Koshti; in the

Birth Register of Khapa town the entry dated 2.5.1934

related to a female child Shantabai born to Shri Bajirao

revealed the caste of Shri Bajirao as Koshti; entry at Sr.

No. 913 in the register maintained by the Municipal Primary

School, Khapa, for the period 1918-1932 in respect of said

Bajirao was shown as belonging to `Koshti' caste and his

occupation was shown in the separate column as `weaving'.

The appellate authority took note of the preponderance of

uninterrupted and consistent evidence of over 150 years

comprising of official publications and authorities like the

Imperial and District Gazetteers, Revenue Settlement

Reports, Decennial Census Reports and works of renowned

Sociologists and Ethnographers. Thus having regard to the

evidence and material on record, the appellate authority

concluded that the 'Koshti' Caste on one hand and the

'Halba' Tribe on the other constituted two different and

distinct entities. After reading the said orders, we find

that the authorities rightly rejected the claim of the

respondent no. 1 as belonging to Scheduled Tribe. It must

be stated here itself that the High Court did not go into

the correctness of the findings of fact recorded by these

two authorities in negativing the claim of the respondent

no. 1. It proceeded to hold in favour of the respondent

no. 1 on other grounds to which we will refer hereafter.

Even otherwise, looking to the evidence placed on record and

the detailed reasons given by the respondents 6 and 5 in

their orders, it is not possible to say that the orders

passed by them were not based on evidence or they were

unsustainable for any reason. Merely because a school

certificate has to be taken as valid as stated in a circular

by the State Government, it was not conclusive in the light

of clinching and telling evidence against the claim of the

respondent no. 1 and in view of the circulars /

instructions issued by the Central Govt. and other

circulars of the State Govt. holding the field.

The High Court to support its view that 'Halba-Koshti'

is included in 'Halba' or 'Halbi' Tribe relied on the

following decisions of High Courts - (1) Sonabai vs.

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Lakhmibai (1956 NLJ 725) (decided by the Division Bench of

erstwhile Nagpur High Court); (2) Madhukar Dekate vs. Dean

of the Medical College, Nagpur (Letter Patent Appeal No.

157/1955, decided on 4th August, 1957 by a Division Bench of

Madhya Pradesh High Court; (3) Sunit Nana Umredkar vs. Dr.

V.G. Ranade (Writ Petition No. 2404 of 1980, decided on

24th September, 1980 by a Division Bench of Bombay High

Court); (4) Prabodh Parhate vs. The State of Madhya

Pradesh and Ors. (Writ Petition No. 1450 of 1981 decided

on 21st January, 1982 by Division Bench of Madhya Pradesh

High Court; (5) Abhay Parate vs. State of Maharashtra,

(1984 Mah. L.J. 289 - a decision of the Division Bench of

the Bombay High Court); (6) Ku. Kalpana Bhishikar vs.

Director of Social Welfare ( Writ Petition NO. 95 of 1985,

decided on 14th February, 1985 by Division Bench of Bombay

High Court). In paragraph 16 of the impugned judgment, the

High Court has stated thus:-

"It is submitted on behalf of the petitioners that

these decisions rendered during a long span of over 34 years

by different Benches of different High Courts consistently

holding that "Halba Koshti is "Halba" must have or in any

case reasonably supposed to have affected the course of life

of a large portion of the community and now taking a

different view, would lead to uncertainty and chaos and

hence we should desist from making a departure. We see

considerable force in the submission specially in the

background of the undisputed position that even the

Government recognized "Halba Koshtis" as "Halba" for a long

period of nearly ten years between 1967 to 1977 by issuing

circulars/instructions from time to time."

The High Court applied the doctrine of stare decisis

on the grounds that the decisions referred to above were

considered judgments; even Government accepted their

correctness in the courts; the State Government

independently took the same view after repeated

deliberations for number of years; taking a contrary view

would lead to chaos, absurd contradictions resulting in

great public mischief. In our view, the High Court was

again wrong in this regard. The learned senior counsel for

the respondent no. 1 was not in a position to support this

reasoning of the High Court and rightly so in our opinion.

In the decisions listed above except the first two

decisions, all other decisions were rendered subsequent to

two Constitution Bench judgments (supra) of this Court. The

first two judgments were delivered in 1956 and 1957. In

this view, the High Court was not right in stating that the

decisions were rendered during a long span of over 34 years

by different benches of different High Courts, consistently

holding that 'Halba-Koshti' is 'Halba'. The rule of stare

decisis is not inflexible so as to preclude a departure

therefrom in any case but its application depends on facts

and circumstances of each case. It is good to proceed from

precedent to precedent but it is earlier the better to give

quietus to the incorrect one by annulling it to avoid

repetition or perpetuation of injustice, hardship and

anything ex-facie illegal more particularly when a precedent

runs counter to the provisions of the Constitution. The

first two decisions were rendered without having the benefit

of the decisions of this Court, that too concerning the

interpretation of the provisions of the Constitution. The

remaining decisions were contrary to the law laid down by

this Court. This Court in Maktul vs. Manbhari & Ors. (

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1959 SCR 1099) adopting the statement of law found in

Halsbury and Corpus Juris Secundum observed thus:-

"But the Supreme appellate court will not shirk from

overruling a decision, or series of a decisions, which

establish a doctrine plainty outside the statue and outside

the common law, when no title and no contract will be

shaken, no persons can complain and no general course of

dealing to be altered by the remedy of a mistake." (From

Halsbury). "Because decisions should not be followed to the

extent that grievous wrong may result and accordingly the

courts ordinarily will not adhere to a rule or principle

established by previous decisions which they are convinced

is erroneous. The rule of stare decisis is not so

imperative or inflexible as to preclude a departure

therefrom in any case, but its application must be

determined in each case by the discretion of the Court and

previous decisions should not be followed to the extent that

error may be perpetuated and grievous wrong may result"

(From Corpus Juris Secondum) The decisions relied on

by the High Court to apply the doctrine of stare decisis,

firstly, were not holding the field for long time.

Secondly, they are evidently contrary to the constitutional

provisions. Thirdly, all the decisions rendered by the High

Courts after 1965 were not consistent with the law laid down

by this Court. Fourthly, if the view of the High Court is

accepted, it will lead to absurd, unjust and ex-facie

illegal results running contrary to Articles 341 and 342 of

the Constitution. Fifthly, this Court in State of

Maharashtra vs. Abhay and Ors. (AIR 1985 SC 328)

specifically had kept open the larger question whether

'Halba-Koshti' is Halba. The High Court in the impugned

judgment refers to this decision but only states that the

said judgment shall govern the petitioner only. Sixthly,

all the said decisions were not directly on the point

relating to Scheduled Tribes Order issued under Article 342

of the Constitution; some of the cases arose out of civil

disputes involving adoption. Seventhly, even the State

Government was not consistent in its stand touching the

issue whether 'Halba-Koshtis' were 'Halba'/'Halbis' to

consider them as Scheduled Tribes. As early as on 20.7.1962

itself a circular was issued to the effect that

'Halba-Koshtis' were not Scheduled Tribes. Further a look

at the various circulars / resolutions/instructions/orders

referred to in paragraphs 20 to 22 of the impugned judgment,

makes it clear that the controversy was not settled. Hence

it cannot be said that the view 'Halba-Koshti' was

'Halba'/'Halbi' Scheduled Tribe was holding the field for

long time. There arose no question of unsettling or

upsetting the position in law which itself was not a settled

one, till first Constitution judgment in Basavalingappa case

was delivered by this Court. Per contra, the impugned

judgment runs contrary to the law clearly settled by various

judgments of this Court.

Thus, the High Court was not right in invoking and

applying the doctrine of stare decisis on the facts and in

the circumstances of the case.

The High Court in paragraphs 20 to 23 dealt with

circulars/resolutions/instructions/orders made by the

Government from time to time on the issue of

'Halba-Koshtis'. It is stated in the said judgment that up

to 20.7.1962 'Halba-Koshtis' were treated as 'Halbas' in the

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specified areas of Vidarbha. Government of Maharashtra,

Education and Social Welfare Department issued Circular No.

CBC 1462/3073/M to the effect that 'Halba-Koshtis' were not

Scheduled Tribes and they are different from

'Halba'/'Halbis'. In the said circular it is also stated

that certain persons not belonging to 'Halba' Tribe have

been taking undue advantage and that the authorities

competent to issue Caste Certificates should take particular

care to see that no person belonging to 'Halba-Koshtis' or

'Koshti' community is given a certificate declaring him as

member of Scheduled Tribes. On 22.8.1967 the

above-mentioned circular of 20.7.1962 was withdrawn.

Strangely, on 27.9.1967, another circular No. CBC-

1466/9183/M was issued showing the intention to treat

'Halba- Koshti' as 'Halba'. On 30.5.1968 by letter No.

CBC-1468-2027-O, the State Government informed the Deputy

Secretary to the Lok Sabha that 'Halba-Koshti' is

'Halba'/'Halbi' and it should be specifically included in

the proposed Amendment Act. Government of Maharashtra on

29.7.1968 by letter No. EBC-1060/49321-J-76325 informed the

Commissioner for Scheduled Castes and Scheduled Tribes that

'Halba-Koshti' community has been shown included in the list

of Scheduled Tribes in the State and the students belonging

to that community were eligible for Government of India Post

Matric Scholarships. On 1.1.1969 Director of Social

Welfare, Tribal Research Institute, Pune, by his letter No.

TRI/I/H.K./68-69 stated that the State Government could not

in law amend the Scheduled Tribe Order and that a tribe not

specifically included, could not be treated as Scheduled

Tribe. In this view the Director sought for clarification.

The Government of India on 21.4.1969 wrote to the State

Government that in view of Basavalingappa's case (supra)

'Halba-Koshti' community could be treated as Scheduled Tribe

only if it is added to the list as a sub-tribe in the

Scheduled Tribes Order and not otherwise. Thereafter few

more circulars were issued by the State Government between

24.10.1969 and 6.11.1974 to recognize 'Halba-Koshtis' as

'Halbas' and indicated as to who were the authorities

competent to issue certificates and the guidelines were

given for enquiry. There was again departure in the policy

of the State Government by writing a confidential letter No.

CBC- 1076/1314/Desk-V dated 18.1.1977. Government informed

the District Magistrate, Nagpur, that 'Halba-Koshtis' should

not be issued 'Halba' Caste Certificate. Thereafter, few

more circulars, referred to in paragraph 22 of the judgment,

were issued. It may not be necessary to refer to those

again except to the circular dated 31.7.1981 bearing No.

CBC-1481/(703)/D.V. by which the Government directed that

until further orders insofar as 'Halbas' are concerned, the

school leaving certificate should be accepted as valid for

the purpose of the caste. Vide Resolution dated 23.1.1985 a

new Scrutiny Committee was appointed for verification of

castes certificates of Scheduled Tribes. The High Court had

observed in paragraph 23 of the judgment that several

circulars issued earlier were withdrawn but the said

circular dated 31.7.1981 was not withdrawn. For the first

time on 8.3.1985 the Scrutiny Committee was authorized to

hold enquiry if there was any reason to believe that the

certificate was manipulated or fabricated or had been

obtained by producing insufficient evidence. Referring to

these circulars/resolutions the High Court took the view

that the caste certificate issued to the respondent no. 1

could be considered as valid and upto 8.3.1985 the enquiry

was governed by circular dated 31.7.1981. The High Court

dealing with the stand of the State Government on the issue

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of 'Halba-Koshti', from time to time, and also referring to

circulars/ resolutions/instructions held in favour of the

respondent no. 1 on the ground that the appellant was bound

by its own circulars/orders. No doubt, it is true, the

stand of the appellant as to the controversy relating to

'Halba-Koshti' has been varying from time to time but in the

view we have taken on question no. 1, the circulars

/resolutions /instructions issued by the State Government

from time to time, some time contrary to the instructions

issued by the Central Government, are of no consequence.

They could be simply ignored as the State Government had

neither authority nor competency to amend or alter the

Scheduled Tribes Order. It appears taking note of false and

frivolous claims being made by persons not entitled to claim

such status, the Government of India addressed letters and

issued instructions between the period from 21.4.1969 to

1982 to impress that there should be strict enquiry before

issuance of caste certificates to persons claiming Scheduled

Caste / Scheduled Tribe status; strict scrutiny into the

caste of the parent should be effected as a check-point.

The State Government issued Resolution dated 29.10.1980 in

consonance with the instructions given by the Central

Government laying down the guidelines on which the enquiry

should be held before issue of Caste Certificate. Another

Resolution dated 24.2.1981 was also issued for appointing a

scrutiny committee to verify whether the Caste Certificate

has been issued to person who is really entitled to it in

view of the complaints of misuse of reservational benefits

on a large scale. These Resolutions were operative as they

had not been repealed. This Court in its judgment dated

19.10.1984 State of Maharashtra vs. Abhay & Ors [AIR 1985

SC 328] directed that the State of Maharashtra should devise

and frame a more rational method for obtaining much in

advance a certificate on the strength of which a reserved

seat is claimed. But the High Court committed an error in

interpreting the scope of the Circular dated 31.7.1981 that

the School Leaving Certificate was conclusive of the caste.

This interpretation was plainly inconsistent with the

instructions and resolutions stated above. Further it may

be also noticed here that the Joint Parliamentary Committee

did not make any recommendation to include 'Halba-Koshti' in

the Scheduled Tribes Order. At any rate the Scheduled

Tribes Order must be read as it is until it is amended under

clause (2) of Article 342. In this view also, the

circulars/ resolutions /instructions will not help the

respondent no. 1 in any way. Even otherwise, as already

stated above, on facts found and established the authorities

have rejected the claim of the respondent no. 1 as to the

Caste Certificate. The power of the High Court under

Article 227 of the Constitution of India, while exercising

the power of judicial review against an order of inferior

tribunal being supervisory and not appellate, the High Court

would be justified in interfering with the conclusion of the

tribunal, only when it records a finding that the inferior

tribunal's conclusion is based upon exclusion of some

admissible evidence or consideration of some inadmissible

evidence or the inferior tribunal has no jurisdiction at all

or that the finding is such, which no reasonable man could

arrive at, on the materials on record. The jurisdiction of

the High Court would be much more restricted while dealing

with the question whether a particular caste or tribe would

come within the purview of the notified Presidential Order,

considering the language of Articles 341 and 342 of the

Constitution. These being the parameters and in the case in

hand, the Committee conducting the inquiry as well as the

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Appellate Authority, having examined all relevant materials

and having recorded a finding that respondent no. 1 belong

to 'Koshti' caste and has no identity with the

'Halba/Halbi', which is the Scheduled Tribe under Entry 19

of the Presidential Order, relating to State of Maharashtra,

the High Court exceeded its supervisory jurisdiction by

making a roving and in-depth examination of the materials

afresh and in coming to the conclusion that 'Koshtis' could

be treated as 'Halbas'. In this view the High Court could

not upset the finding of fact in exercise of its writ

jurisdiction. Hence, we have to essentially answer the

question no. 2 also in the negative. Hence it is answered

accordingly.

The arguments advanced before the High Court on behalf

of an intervener relying on Articles 162, 256 to 258 and

339(2) of the Constitution of India that instructions issued

by the Central Government in the matter have overriding

effect over the instructions issued by the State Government,

was lightly brushed aside on the ground that this aspect

assured little importance in the view taken by the High

Court that the State Government was bound by the circulars

issued by it. We have already expressed above the view in

the light of Articles 341 and 342 of the Constitution that a

Scheduled Tribes Order can be amended only by the

Parliament. Hence it is not possible to accept that

orders/circulars issued by the State Government, which have

the effect of amending Scheduled Tribes Order, were binding

on the Government or other affected parties.

In order to protect and promote the less fortunate or

unfortunate people who have been suffering from social

handicap, educational backwardness besides other

disadvantages, certain provisions are made in the

Constitution with a view to see that they also have the

opportunity to be on par with others in the society.

Certain privileges and benefits are conferred on such people

belonging to Scheduled Tribes by way of reservations in

admission to educational institutions (professional

colleges) and in appointments in services of State. The

object behind these provisions is noble and laudable besides

being vital in bringing a meaningful social change. But,

unfortunately, even some better placed persons by producing

false certificates as belonging to Scheduled Tribes have

been capturing or cornering seats or vacancies reserved for

Scheduled Tribes defeating the very purpose for which the

provisions are made in the Constitution. The Presidential

Orders are issued under Articles 341 and 342 of the

Constitution recognizing and identifying the needy and

deserving people belonging to Scheduled Castes and Scheduled

Tribes mentioned therein for the constitutional purpose of

availing benefits of reservation in the matters of

admissions and employment. If these benefits are taken away

by those for whom they are not meant, the people for whom

they are really meant or intended will be deprived of the

same and their sufferings will continue. Allowing the

candidates not belonging to Scheduled Tribes to have the

benefit or advantage of reservation either in admissions or

appointments leads to making mockery of the very reservation

against the mandate and the scheme of the Constitution.

In the light of what is stated above, the following

positions emerge:-

1. It is not at all permissible to hold any enquiry

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or let in any evidence to decide or declare that any tribe

or tribal community or part of or group within any tribe or

tribal community is included in the general name even though

it is not specifically mentioned in the concerned Entry in

the Constitution (Scheduled Tribes) Order, 1950.

2. The Scheduled Tribes Order must be read as it is.

It is not even permissible to say that a tribe, sub-tribe,

part of or group of any tribe or tribal community is

synonymous to the one mentioned in the Scheduled Tribes

Order if they are not so specifically mentioned in it.

3. A notification issued under Clause (1) of Article

342, specifying Scheduled Tribes, can be amended only by law

to be made by the Parliament. In other words, any tribe or

tribal community or part of or group within any tribe can be

included or excluded from the list of Scheduled Tribes

issued under Clause (1) of Article 342 only by the

Parliament by law and by no other authority.

4. It is not open to State Governments or courts or

tribunals or any other authority to modify, amend or alter

the list of Scheduled Tribes specified in the notification

issued under Clause (1) of Article 342.

5. Decisions of the Division Benches of this Court in

Bhaiya Ram Munda vs. Anirudh Patar & others (1971 (1) SCR

804) and Dina vs. Narayan Singh (38 ELR 212), did not lay

down law correctly in stating that the enquiry was

permissible and the evidence was admissible within the

limitations indicated for the purpose of showing what an

entry in the Presidential Order was intended to be. As

stated in position (1) above no enquiry at all is

permissible and no evidence can be let in, in the matter.

Having regard to all aspects and for the reasons

stated above, this appeal merits acceptance. Hence, it is

allowed. The impugned judgment and order of the High Court

are set aside.

Respondent no. 1 joined the medical course for the

year 1985- 86. Almost 15 years have passed by now. We are

told he has already completed the course and may be he is

practicing as doctor. In this view and at this length of

time it is for nobody's benefit to annul his Admission.

Huge amount is spent on each candidate for completion of

medical course. No doubt, one Scheduled Tribe candidate was

deprived of joining medical course by the admission given to

respondent no. 1. If any action is taken against

respondent no. 1, it may lead depriving the service of a

doctor to the society on whom public money has already been

spent. In these circumstances, this judgment shall not

affect the degree obtained by him and his practicing as a

doctor. But we make it clear that he cannot claim to belong

to the Scheduled Tribe covered by the Scheduled Tribes

Order. In other words, he cannot take advantage of the

Scheduled Tribes Order any further or for any other

constitutional purpose. Having regard to the passage of

time, in the given circumstances, including interim orders

passed by this Court in SLP (C) No. 16372/85 and other

related affairs, we make it clear that the admissions and

appointments that have become final, shall remain unaffected

by this judgment.

No costs.

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