Indian Kanoon - Search engine for Indian Law

29. 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. 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 the 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 Tribunal 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 of 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 respondent No. 1, on other grounds to which we will refer hereafter. Even otherwise, looking at 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 Government holding the field.

"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."

(From Corpus Juris Secundum) 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 v. 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/Halbi' 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.

32. 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.

33. 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 on 'Halba-Koshtis'. It is stated in the said judgment that up to 20.7.1962 'Halba-Koshtis' were treated as 'Halbas' in the 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/Haibis'. 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-1060/4932 l-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, Tribunal Research Institute, Pune, by his letter No. TRI/1/H.K./68-69 stated that the Slate 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 order 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 of 'Halba-Koshtis', 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-Koshtis' 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 v. Abhay and 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 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 indepth 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.