Orissa High Court
Jasobanta Gingira vs Union Of India And Others .... Opposite ... on 21 March, 2024
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.19337 of 2022
Jasobanta Gingira .... Petitioner
Mr. A.K.Nayak, Advocate
-Versus-
Union of India and Others .... Opposite parties.
Mr. Ishwar Mohanty, ASC
Ms. J. Sahoo, CGC
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
21.03.2024 Order No.
06. 1. Heard Mr. Nayak, learned counsel for the petitioner, Ms. Sahoo, learned CGC appearing along with Mr. Parhi, learned DSGI and Mr. Mohanty, learned ASC for the State.
2. Instant writ petition is filed by the petitioner challenging the correctness of the impugned orders under Annexures-6 and 9 and to declare him as the Schedule Caste on the grounds stated therein.
3. The decision of opposite party No.3 under Annexure-6 that the caste 'Gingira' is not a Schedule Caste was challenged by the petitioner before opposite party No.3 which was entertained in Caste Certificate Appeal No.01 of 2020 and disposed of by order dated 3rd March, 2020 vide Annexure-9 confirming the decision that the caste is not a Schedule Caste in Odisha and such inclusion with a request to the Ministry of Social Justice and Empowerment has been rejected.
4. Mr. Nayak, learned counsel for the petitioner would submit that the caste 'Gingira' is synonym to 'Keuta', hence, a Schedule Page 1 of 5 Caste, the fact which has been lost sight of by the learned authorities below and therefore, the impugned orders under Annexures-6 and 9 are liable to be interfered with and set aside with a declaration that 'Gingira' caste is a Schedule Caste. While advancing such an argument, Mr. Nayak refers to a decision of this Court in Krushna Chandra Bariki Vrs. State of Odisha and others 1991 (II) OLR 504 to contend that therein considering the occupation with the caste 'ChudaKuta', it was held that the same is synonymousto 'Dewar community, hence, the caste 'Keuta', 'Kaibarta' are to be held as Schedule Caste. It is further submitted that such a decision is in line of the judgment and principles discussed in Narayan Behera Vrs. State of Odisha 49 (1980) CLT 47.
5. On the other hand, Ms. Sahoo, learned CGC for opposite party No.1 and Mr. Mohanty, learned ASC for the State would submit that the Court cannot declare any such caste as a Schedule Caste which has been pleaded for and therefore, the learned authorities below did not commit any error or illegality in passing the impugned orders under Annexures-6 and 9, so, therefore, the decision is not liable to be disturbed.
6. In course of hearing, Mr. Mohanty, learned ASC for the State cited a decision of the Apex Court in the case of State of Maharashtra Vrs. Milind and others (2001) 1 SCC 4and it is contended that the legal position has been summarized therein which is to the effect that it is not open to the 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 in terms of Article 342(1) of the Constitution of India. It is further submitted that no such enquiry is permissible or any evidence can be let in to decide or declare that any such tribe or tribal community or part of or Page 2 of 5 group within any tribe or tribal community is included in the general name mentioned in an entry even though it is not specifically described in Presidential Order, 1950. Mr. Mohanty, learned ASC for the State and also Ms. Sahoo, learned CGC lastly submit that the above being the principle laid down, the petitioner cannot claim or seek a declaration as a Schedule Caste considering the caste 'Gingira' synonym to 'Keuta'.
7. It is profitable to the Court the relevant extract of the decision(supra) and the same is reproduced herein below:
"In the light of what is stated above, the following positions emerge:
1. It is not at all permissible to hold any inquiry 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 entry concerned in the Constitution (Schedule Tribes) Order,1950.
2. The scheduled Tribes Order must be read as it. It is not even permissible to say that a tribe, sub-tribe, part of 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 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 Page 3 of 5 Tribes issued under clause(1) of Article 342 only by 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 Vrs. Anirudh Patar(1970) 2 SCC 825and Dina Vrs. Narain Singh 38 ELR 212: (1968) 8 DEC 329 did not lay down law correctly in stating that the inquiry was permissible indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in Position (1) above, no inquiry at all is permissible and no evidence can be let in, in the matter".
8. Considering the above settled legal position and since no such enquiry is allowed or any such evidence could be permitted so as to take a decision as to particular caste whether a Schedule Caste or Schedule Tribe to hold that such caste synonymous to be one mentioned in the Presidential Order, the Court has to reach at a conclusion that the learned authorities below did not err in taking a decision that the petitioner not be a Schedule Caste. In order words, since the legal position enunciated in Milind (supra) specifically bars any such inclusion by an enquiry even by a Court or any such authority for a declaration of a caste synonymous the caste described in the Presidential Order, the irresistible conclusion would be that the impugned decision under Annexure-9 thereby confirming Annexure-6 does not suffer from any legal infirmity.
Page 4 of 59. Hence, it is ordered.
10. Consequently, the writ petition stands dismissed.
(R.K.Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 27-Mar-2024 15:24:53 Page 5 of 5