Calcutta High Court (Appellete Side)
Sk. Jayed Hossain vs The State Of West Bengal And Others on 10 May, 2022
May 10, 2022
Sl. No.20
Court No.1
PA - RB WPA (P) 186 of 2022
Sk. Jayed Hossain
vs.
The State of West Bengal and Others
Mr. Robiul Islam,
Mr. Samim ul Bari,
Mr. K.M. Hossain, Advocates
... for the petitioner
Sk. Md. Galib,
Mr. Subhabrata Das, Advocates
... for the State
Mr. Amarendra Chakraborty, Advocate
... for the Union of India
Petitioner claiming himself to be a public spirited
person has filed this public interest petition. The grievance
raised in the petition is that the respondent authorities are
not recognizing 'Majhi' community as Scheduled Tribe
category and thereby no issuing ST certificate in their
favour.
Submission of learned Counsel for the petitioner is
that the members of 'Majhi' community belong to 'Santhal'
community, therefore, they are entitled for the Scheduled
Tribe certificate.
The prayer has been opposed by learned Counsel for
the respondents submitting that in view of the Presidential
Order, the members of 'Majhi' community are not entitled
to the certificate of ST category.
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We have heard the learned Counsel for the parties and
perused the record.
The Constitution (Scheduled Tribe) Order, 1950
issued in exercise of power conferred by clause (1) of
Article 342 of the Constitution of India clearly mentions in
the Schedule, different tribes in various states, which are
covered by the Presidential Order. So far as the State of
West Bengal is concerned, 'Majhi' is not covered by the
Presidential Order but only 'Santhal' is covered.
It is the settled position in law that once the
Presidential Order is issued, it can only be amended by the
Legislature and Courts cannot assume jurisdiction to enter
into enquiry to determine if any particular tribe is covered in
any other tribe as indicated in the Presidential Order. It has
also been settled that the State Government or any authority
or the Court or Tribunal are not vested with any power to
modify or vary the Scheduled Tribes order.
In a recent judgment in the matter of State of
Maharashtra and Another vs. Keshao Vishwanath
Sonone and Another reported in 2020 SCC OnLine SC
1040, Hon'ble Supreme Court has considered the earlier
judgments on the point and has held that:
"47. We may notice another Constitution Bench
judgment in Bhaiya Lal v. Harikishan Singh, AIR 1965 SC
1557, which was delivered few months after judgment of B.
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WPA (P) 186 of 2022
Basavalingappa's case, noted the ratio of judgment and
reiterated that though the appellant was not a Scheduled Caste
as enumerated in the Scheduled Castes Order but he belonged
to another caste, which is sub-caste of Scheduled Caste, cannot
be looked into. In the above case, Bhaiya Lal was elected from
reserved seat. Election was challenged on the ground that
Bhaiya Lal belonged to Dohar caste and was not a Chamar.
Bhaiya Lal in his nomination has declared that he was member
of Chamar Scheduled Caste. Election Tribunal found against
the elected candidate and set aside the election. The High
Court dismissed the appeal. Bhaiya Lal questioned the
judgment of the High Court as well as the Election Tribunal.
The case of the appellant was that he was a Dohar Chamar,
which is a sub-caste of Chamar Scheduled Caste. This Court
held that the claim that Dohar caste is a sub-caste of Chamar
caste cannot be entertained. in paragraph 8 following has been
laid down:--
"8. Incidentally, we may point out that the plea
that the Dohar caste is a sub-caste of the Chamar caste
cannot be entertained in the present proceedings in
view of the Constitution (Scheduled Castes) Order,
1950. This Order has been issued by the President
under Article 341 of the Constitution. Article 341(1)
provides that 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. Sub-article (2) lays down
that 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 a notification issued under the said clause
shall not be varied by any subsequent notification. It is
thus clear, 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. In the present
case, the notification refers to Chamar, Jatav or Mochi,
and so, in dealing with the question in dispute between
the parties, the enquiry which the Election Tribunal can
hold is whether or not the appellant is a Chamar, Jatav
or Mochi. The plea that though the appellant is not a
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WPA (P) 186 of 2022
Chamar as such, he can claim the same status by reason
of the fact that he belongs to the Dohar caste which is a
sub-caste of the Chamar caste, cannot be accepted. It
appears to us that an enquiry of this kind would not be
permissible having regard to the provisions contained
in Article 341. In the case of B. Basavalingappa v. D.
Munichinnappa this Court had occasion to consider a
similar question. The question which arose for decision
in that case was whether Respondent 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."
48. In Bhaiya Lal's case, the Constitution Bench
reiterated the ratio of B. Basavalingappa's case in following
words:--
"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."
49. We may notice few more judgments of this Court
where the law on the subject was explained and reiterated.
In Srish Kumar Choudhury v. State of Tripura, 1990 Supp
SCC 220, this Court had occasion to consider Article 342. In
the above case, the appellant had filed an application in a
representative capacity before the High Court claiming that he
belonged to Laskar community, which has always been treated
in the erstwhile State of Tripura as a Scheduled Tribe. The writ
petition was dismissed by the High Court against which the
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WPA (P) 186 of 2022
appeal was filed. This Court referred to earlier two
Constitution Bench judgments in B. Basavalingappa's
case and Bhaiya Lal's case. The observations made by the
Constitution Bench in B. Basavalingappa's case and Bhaiya
Lal's case were extracted in paragraphs 8, 9 and 10. In
paragraph 9, Three Judge Bench quoted the extract
from Bhaiya Lal's judgment and in paragraph 11, it was held
that the ratio of judgment of Bhaiya Lal's case supports the
view of earlier judgment of Constitution Bench in B.
Basavalingappa's case. In paragraphs 10 and 11, following has
been laid down;-
"10. A similar dispute again came before a
Constitution Bench in Bhaiyalal v. Harikishan
Singh, AIR 1965 SC 1557 with reference to a
scheduled tribe in an election dispute. Gajendragadkar,
C.J. speaking for the court said : (SCR pp. 882-83)
"It is obvious that in specifying castes,
races or tribes, the President has been expressly
authorised to limit the notification to parts of or
groups within the castes, races or tribes, and
that must mean that after examining the
educational and social backwardness of a caste,
race or tribe, the President may well come to
the conclusion that not the whole caste, race or
tribe but parts of or groups within them should
be specified. Similarly, the President can
specify castes, races or tribes or parts thereof in
relation not only to the entire State, but in
relation to parts of the State where he is
satisfied that the examination of the social and
educational backwardness of the race, caste or
tribe justifies such specification. In fact, it is
well known that before a notification is issued
under Article 341(1), an elaborate enquiry is
made and it is as a result of this enquiry that
social justice is sought to be done to the castes,
races or tribes as may appear to be necessary,
and in doing justice, it would obviously be
expedient not only to specify parts or groups of
castes, races or tribes, but to make the said
specification by reference to different areas in
the State."
11. What we have extracted above clearly
supports the view of the other Constitution Bench,
namely, the list is intended to be final."
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50. The Three Judge Bench reiterated that Courts
cannot enter into an enquiry to determine whether the three
terms indicated in the Presidential Order include Deshi Tripura
which covers the Laskar community. In paragraph 20,
following was laid down:--
"20. 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;
.........................................."
51. This Court also reiterated that enquiry is
contemplated before the Presidential Order is made.
52. The next judgment to be noticed is Palghat Jilla
Thandan Smudhaya Samrakshna Samithi v. State of
Kerala, (1994) 1 SCC 359. In the above case, a writ petition
was filed claiming that the petitioner belonged to Thandan
community, therefore, a Scheduled Caste certificate be issued.
The writ petition was allowed, however, the petitioner was
denied admission in M.B.B.S. course in seat reserved for
Scheduled Caste on the ground that she was not a Thandan. A
Three Judge Bench of this Court after noticing the ratio of
earlier two Constitution Bench judgments has held that the
Court could not assume the jurisdiction and order an enquiry to
determine whether the terms of the Presidential Order includes
a particular community. In paragraphs 17 and 18, following
was laid down:--
"17. We may usefully draw attention to the
judgment of a Bench of three learned Judges of this
Court in Srish Kumar Choudhury v. State of
Tripura, 1990 Supp SCC 220. This judgment
considered the Constitution Bench judgments in B.
Basavalingappa v. D. Munichinnappa, AIR 1965 SC
1269 and Bhaiyalal v. Harikishan Singh, AIR 1965 SC
1557 and certain other judgments. It held that the two
Constitution Bench judgments indicated that any
amendment to the Presidential Orders could only be by
legislation. The Court could not assume jurisdiction
and order an enquiry to determine whether the terms of
the Presidential Order included a particular community.
A State Government was entitled to initiate appropriate
proposals for modification in cases where it was
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satisfied that modifications were necessary and, if after
appropriate enquiry, the authorities were satisfied that a
modification was required, an amendment could be
undertaken as provided by the Constitution.
18. These judgments leave no doubt that the
Scheduled Castes Order has to be applied as it stands
and no enquiry can be held or evidence let in to
determine whether or not some particular community
falls within it or outside it. No action to modify the
plain effect of the Scheduled Castes Order, except as
contemplated by Article 341, is valid."
53. A Two Judge Bench in Kumari Madhuri
Patil v. Addl. Commissioner, Tribal Development, (1994) 6
SCC 241 had occasion to consider the Constitution (Scheduled
Tribes) Order, 1950 as applicable to State of Maharashtra. In
Constitution (Scheduled Tribes) Order, 1950, caste "Mahadeo
Koli" was included. The appellants claimed that they were
entitled to Scheduled Tribe certificate of Mahadeo Koli
whereas caste was shown in admission register as "Hindu
Koli". The Scheduled Caste certificate was refused. A writ
petition was filed in the High Court, which was dismissed
against which the matter came to this Court. This Court held
that Scheduled Caste notified was Mahadeo Koli and the
petitioners being Hindu Koli were not entitled for the
Scheduled Tribes certificate. In paragraph 9, following has
been laid down:--
"9.
..................................................................
.... It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact disentitled to such status. The case in hand is a clear instance of such pseudo-status. Kolis have been declared to be OBC in the State of Maharashtra being fishermen, in that their avocation is fishing and they live mainly in the coastal region of Maharashtra. Mahadeo Kolis are hill tribes and it is not a sub-caste. Even prior to independence, the Maharashtra Government declared Mahadeo Koli to be criminal tribe as early as 29-5-1933 in Serial No. 15 in List II thereof. In 1942 Resolution in Serial No. 15 in 8 WPA (P) 186 of 2022 Schedule B of the Bombay resolution Mahadeo Koli tribe was notified as a Scheduled Tribe. It was later amended as Serial No. 13. In the Presidential Scheduled Castes/Scheduled Tribes Order, 1950, it was reiterated. A slight modification was made in that behalf by the Presidential Notification dated 29-10- 1956. In the 1976 Amendment Act, there is no substantial change except removing the area restriction. Thus Mahadeo Koli, a Scheduled Tribe continued to be a Scheduled Tribe even after independence. The Presidential Notification, 1950 also does recognise by public notification of their status as Scheduled Tribes. The assumption of the Division Bench of the Bombay High Court in Subhash Ganpatrao Kabade case1, that Mahadeo Koli was recognised for the first time in 1976 under Amendment Act, 1976, as Scheduled Tribe is not relatable to reality and an erroneous assumption made without any attempt to investigate the truth in that behalf. Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or sub-castes/parts of or groups of tribes or tribal communities is permissible."
54. A Three Judge Bench in Nityanand Sharma v. State of Bihar, (1996) 3 SCC 576 had also considered the similar question. The question which was up for consideration has been noted in paragraph 2 of the judgment to the following effect:--
"2. Short but an important question of constitutional law of the power of the court to declare a particular tribe to be Scheduled Tribe under Scheduled Castes and Scheduled Tribes Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Orders (Amendment Act), 1976 (for short "the Act") is the primary question."
55. The petitioner in the above case belonged to Lohar community. They claimed Scheduled Tribe certificate. The State resisted the claim that Lohar in State of Bihar is recognised as Other Backward Class and not Scheduled Tribe. The entry in the Scheduled Tribe Order mentioned Lohara/Lohra. This Court held that the question which is up for consideration is no longer res integra and is covered by ratio of the Constitution Bench judgment in Bhaiya Lal and B. Basavalingappa case. In paragraphs 13 and 15, following was laid down:--
9WPA (P) 186 of 2022 "13. The question then is : Whether Lohars could be considered by the Court as synonyms of Loharas or Lohras? This question is no longer res integra. In Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 a Constitution Bench of this Court had considered in an election petition whether Dadar caste was a Scheduled Caste. It held that the President in specifying a caste, race or tribe has expressly been authorised to limit the notification to parts of or groups within the caste, race or tribes. It must mean that after examining the social and educational backwardness of a caste, race or a tribe, the President may come to the conclusion that not the whole caste, race or tribe, but parts of or groups within them should be specified as Scheduled Caste or Scheduled Tribe. The result of the specification is conclusive. Notification issued under Article 341(1), after an elaborate enquiry in consultation with the Governor and reaching the conclusion specifying particular caste, race or tribe with reference to different areas in the State, is conclusive. The same view was reiterated in B. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269.
15. It is for Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, "Scheduled Tribes" defined under Article 366(25) as substituted (sic) under the Act, and the Second Schedule thereunder are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the Schedule concerned, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe."
56. Rejecting the claim of Lohar as Scheduled Tribe, following was laid down in paragraphs 18 and 20:--
10WPA (P) 186 of 2022 "18. It is seen that in the Second Schedule in Part III of the Act, as extracted hereinbefore, Lohar was not included as a Scheduled Tribe. It is only, as evidenced from the translated version, that the community 'Lohar' came to be wrongly translated for the word 'Lohra' or 'Lohara' and shown to have been included in the Second Schedule, Part III, applicable to Bihar State. Mr. B.B. Singh, therefore, is right in placing before us the original version in English and the translated version.
20. Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous.
It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are blacksmiths. We approve the said view laying down the correct law."
57. Now, we come to a subsequent Constitution Bench judgment of this Court in State of Maharashtra v. Milind, (2001) 1 SCC 4. Before the Constitution Bench, two questions arose, which are noted in paragraph 1 of the judgment to the following effect:--
"In this appeal, the following two questions arise for consideration:
(1) Whether at all, it is permissible to hold inquiry 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 entry concerned 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 the State of Maharashtra, even though it is not specifically mentioned as such?"
58. Entry 19 of the Constitution (Scheduled Tribes) Order, 1950 as applicable in the State of Maharashtra was Halba/Halbi. The claim was raised by another caste Halba-
11WPA (P) 186 of 2022 Koshti that they are also entitled for issue of Scheduled Tribe certificate. The caste certificate of the respondent was rejected by the Caste Scrutiny Committee against which an appeal was filed, which was dismissed holding that respondent No. 1 belonged to Koshti and did not belong to Halba/Halbi Scheduled Tribe. Writ petition was filed by respondent No. 1, which was allowed by the High Court 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 subdivision of main tribe 'Halba'/'Halbi' as per Entry No. 19 in the Scheduled Tribe Order applicable to Maharashtra. In paragraph 5 of the judgment, following was held by this Court:--
"5. The High Court allowed the writ petition and quashed the impugned orders inter alia holding that it was permissible to inquire whether any subdivision of a tribe was a part and parcel of the tribe mentioned therein and that "Halba-Koshti" is a subdivision of main tribe "Halba/Halbi" as per Entry 19 in the Scheduled Tribes Order applicable to Maharashtra. Hence the State of Maharashtra has come up in appeal by special leave, questioning the validity and correctness of the order of the High Court allowing the writ petition of Respondent 1."
59. This Court after noticing the constitutional provisions held that 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 the Scheduled Tribes Orders. This Court also held that 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 paragraph 12, following has been laid down:--
"12. ..............................................It appears that the object of clause (1) of Articles 341 and 342 was to keep away disputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whether a particular caste or a tribe is Scheduled Caste or Scheduled Tribe as the case may be, within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342, is to be determined looking to them as they are. Clause (2) of the said articles does not permit any one to seek modification of the said orders by leading evidence that the caste/Tribe (A) alone is mentioned in the Order but 12 WPA (P) 186 of 2022 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 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 Scheduled 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 the said Orders. If that be so, no inquiry 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 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful."
The above judgment clearly reveals that as per the settled legal position, no addition or modification in the Presidential Order is permissible. Hence, the prayer made in the petition cannot be granted. The petition is accordingly dismissed.
[Prakash Shrivastava, C.J.] [Rajarshi Bharadwaj, J.]