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Showing contexts for: list of caste in Jaldhali Devi vs The State Of Bihar & Ors on 3 April, 2017Matching Fragments
(Per: HONOURABLE THE CHIEF JUSTICE) Date: 03-04-2017 All these writ petitions have been filed for quashing a circular bearing No. 9532 dated 01.07.2015 issued by the Additional Secretary, General Administrative Department, Government of Bihar, (Annexure-1) in the record of C.W.J.C. No. 10650 of 2015 whereby „Tanti/Tantwa‟ is deleted from the Most Backward list and it is alleged that it has been included in a list of Scheduled Caste. It is stated that „Tanti‟ and „Tantwa‟ belong to the Most Backward Class community in the State of Bihar but by deleting their name from the said list and by including them in the list of Scheduled Caste the State of Bihar has acted in violation to the mandate of the Constitution inasmuch as inclusion of a Scheduled Caste or a Scheduled Tribe in the list of Schedule Caste and Scheduled Tribe by amendment to the Presidential order is permissible only by the Central Government or by the President and not by the State Government. Accordingly, by contending that the State Government has acted in excess of the power available to it, it does not have the power to include a caste in the category of Scheduled Caste, the writ petition has been filed and Patna High Court CWJC No.10650 of 2015 dt.03-04-2017 in support of the aforesaid contention the following judgments have been referred to:-
2. By referring to the judgment rendered by the Supreme Court in the case of Kumari Tanuja (supra) and other judgments, it was argued that the power to include a particular caste or exclude a caste from the list of Scheduled Caste or Scheduled Tribe is conferred only with the Central Government and the State Government does not have any power to do so. It was submitted that by including "Tanti" and "Tantwa" in the Scheduled Caste category Patna High Court CWJC No.10650 of 2015 dt.03-04-2017 the State Government has acted in excess of the powers available to them. Referring to the law laid down by the Supreme Court in the case of Indra Sawhney Vs. Union of India- 1992 Supp (3) SCC 217 and various other cases as indicated hereinabove the only submission that was canvassed before us is that the impugned order/circular (Annexure-1) has the effect of removing the caste in question from the list of Most Backward Class and including it in a Scheduled Caste Category which is beyond the powers available to the State Government and as it could be done only by issuing a notification under Clause (1) of Article 342 of the Constitution by the Central Government after amendment in the Presidential Scheduled Caste Order of 1950.
3. On the contrary, learned counsels appearing for Respondent No. 7 took us through the circular in question (Anmnexure-1) and argued that in the notification issued by the Central Government i.e. the Presidential list notified by the Central Government for the State of Bihar the caste Pan and Swasi is already notified and included in the category of Scheduled Caste by the Government of India and when a reference was made with regard to the question of Tanti and Tantwa, the State Backward Class Community gave its recommendation and pointed out that the caste Tanti and Tantwa is only a "title", is synonymous with the caste Pan Patna High Court CWJC No.10650 of 2015 dt.03-04-2017 and Swasi already included at Serial No. 20 of the Scheduled Caste list notified by the Central Government and, therefore, their name should be removed from the list of highly Backward Class as they are already covered by the entry made namely, the entry, Pan and Swasi which is a notified Scheduled Caste. Accordingly, it is the case of the respondents that the State Government has not included the caste in the list of Scheduled Caste, on the contrary on the basis of recommendation of the Commission as Tanti and Tantwa which is in fact a title, synonymous of Pan and Swasi, a duly notified Scheduled Caste, the State has only deleted it from the list of Most Backward Class. It is said that the Commission has made its recommendation and as the recommendation of the Commission is binding on the State Government, the State has not committed any error. By taking us through the Circular (Annexure-1) it was argued that the petitioners are misconstruing the same, the State has only taken action for clarifying its position by indicating the correct fact, therefore, no error has been committed warranting consideration.
6. There is no dispute in accepting the proposition put forth by learned counsel for the petitioners that the State Government does not have the power to include a Scheduled Caste or a Scheduled Tribe community in the order specifying the aforesaid categories in the Presidential order. It can only be done by the Government of India in view of the mandate of Article 341 (2) of the Constitution read Patna High Court CWJC No.10650 of 2015 dt.03-04-2017 along with the Constitution Scheduled Caste Orders as amended from time to time. To that effect, we see no difficulty in accepting the proposition of the petitioners. However, on a perusal of the Circular (Annexure-1) it is seen that the State Government has only directed for removal of Tanti and Tantwa community from the list of Most Backward Classes as notified for the State of Bihar in view of the fact that it is synonymous to Pan and Swasi, only a title, is a notified Scheduled Caste, already notified by the Central Government way back in the year 1978 and 1997. It is seen that finding Pan and Swasi to be already notified as Scheduled Caste in the State of Bihar as per the Constitution Scheduled Caste Order 1950 and Tanti and Tantwa to be erroneously notified as belonging to other Backward Classes in the State of Bihar, it being a title only synonymous to the categories Pan and Swasi already notified by the Central Government, keeping in view the recommendation of the Commission the Circular in question has been issued. It is a case where the State Government has not amended the list of Scheduled Caste as notified by the Union but it has only deleted a particular entry namely Tanti and Tantwa from the list of other Backward Class and it is found that as they are synonymous with Pan and Swasi which is a notified Scheduled Caste, therefore, their name should be deleted from the State list of highly Backward Class so that they get the benefit of the Scheduled Caste Patna High Court CWJC No.10650 of 2015 dt.03-04-2017 category notified by the Union Government. That in sum and substance is the import of the circular in question and that being the position, we see no reason to make any indulgence into the matter.