Indian Kanoon - Search engine for Indian Law

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).

(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 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 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 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.