Orissa High Court
WP(C)/16014/2010 on 3 March, 2021
W.P.(C) No.16014 of 2010
21. 03.03.2021 1. Heard Mr. H.N. Mohapatra, learned counsel for the Petitioners and Mr. S. Palit, learned Additional Government Advocate for the State-Opposite Parties.
2. The Petitioners have approached this Court to recognize "Sabar, Nalua Sabar, Kela Sabar community persons in the Scheduled Tribe (ST) category.
3. In the reply filed by Opposite Party Nos.1 and 2, it is pointed out that in ST list for Odisha, there is no community notified as "Sabar", which has synonyms like "Kela", "Nalua Kela" and "Nalua Sabar". Rather "Kela" and "Nalua Kela" are notified as Scheduled Castes (SC) at Sl. No.45 of the SC list of Odisha. There is no community notified as "Nalua Sabar".
4. Learned counsel for the Petitioners contended that in the list of STs notified under the Orissa Caste Certificate (SC & ST) Rules, "Sabar" was included at Sl. No.60.
5. However, from the counter affidavit filed by Opposite Party Nos.1 and 2, it is seen that as per the Presidential Order of 1950 for the STs titled 'The Constitution (Scheduled Tribes) Order, 1950 published in the Gazette of India on 6th September, 1950' under S.R.O. 510, the STs relating to State of Odisha included only 42 communities. This number rose to 62 under subsequent amendments. The last serial number in the first order No.42 and "Sabar" does not find place anywhere therein. A copy of the genuine version of the amended list shows that the entry at Sl. No.60 reads "Shabar", "Lodha" and not "Sabar". It is categorically stated that there is no order issued before 2009 either by the Central Government or by the State Government showing Kela, Sapua Kela, Nalua Kela, Nalua Sabar etc. as synonymous with Sabar. It is stated that Kela (since 1950), Sapua Kela and Nalua Kela (since 2002) are in the SC list of Odisha. In fact, there is no such Rule called "Orissa Caste Certificate (SC & ST) Rule, 2011 published by the State Government mentioning "Sabar" or "Lodha" under Sl. No.60 as STs.
6. Learned counsel for the Petitioners sought to submit that dthe difference is only phonetifical and that "Sabar" is usually pronounced as "Shabar", and therefore, it is, in fact, one and the same community.
7. The Court is unable to agree with the above submission. There is a scope of judicial review in the matter of directing inclusion of a particular community in the list of STs in "the Constitution (Scheduled Tribes) Order, 1950 is extremely limited. In the decision in Nityananda Sharma and another v. State of Bihar, (1996) 3 SCC 576 the Supreme Court held as follows :
"It is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, 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 under the Act, and the second Schedule there under 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 concerned Schedule, 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."
8. In that view of the matter, the Court is unable to accede to the prayer of the Petitioners that "Sabar" should be considered as included in the list of STs notified by "the Constitution (Scheduled Tribes) Order, 1950.
9. The writ petition is accordingly dismissed.
10. Learned counsel for the Petitioners submits that the Petitioners may be permitted, notwithstanding this order, to approach the Government of India for inclusion of "Sabar" in the aforementioned "the Constitution (Scheduled Tribes) Order, 1950. Without expressing any opinion on this submission on merits, it is clarified that it would be open to the Petitioners to seek other appropriate remedies available to them in accordance with law.
(Dr. S. Muralidhar) Chief Justice (B.P. Routray) Judge KC Bisoi