18 Dec 2020

It is not open for the Courts to make any modification in the Scheduled Castes and Scheduled Tribes Orders; Parliament alone can act in this respect - Supreme Court of India

Case : The State Of Maharashtra & Anr v. Keshao Vishwanath Sonone & Anr Civil Appeal No. 4096 of 2020

Court :

Bench : Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah

Decided on : 18 Dec 2020

Relevant Statutes

Constitution (Scheduled Tribes) Order, 1950

Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976

Constitution of India,1949- Article 342, 366(25)

Brief Facts and Procedural History:

1. A Scheduled Tribe namely “Gond Govari” lives in the State of Maharashtra and a part of the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 as applicable in the State of Maharashtra.

2. The Nagpur Division Bench of the Bombay High Court allowed four writ petitions related to “Gond Govari” tribe which were as follows:

a. Keshao Vishwanath Sunone claimed himself to belong to Gowari caste. The State of Maharashtra claimed that Sunone belongs to Gowari caste, which comes under the Scheduled Tribes as there is no Gond Govari caste in existence. The caste certificate of Gond Govari Scheduled Tribe was issued to Sunone in 1986 and was sent for verification of caste. The Caste Scrutiny Committee in 2007 invalidated the caste certificate of Sunone. Sunone challenged the order of the Caste Scrutiny Committee through a writ petition.

b. Adivasi Gond Govari (Gowari) Sewa Mandal, an association working for the welfare of Gond Govari community through its President claimed that a caste validity certificate was wrongly issued to respondent Nos.4 to 19 as Scheduled Tribe (Gond Govari) without conducting an enquiry. The respondents belonged to Gowari community and not to Gond Govari community. The quashing of the caste validity certificates issued was prayed for along with a detailed enquiry into the entries.

c. Adim Gowari Samaj Vikas Mandal association working for betterment and welfare of Gowari community challenged the validity of the Government Resolution dated 24.06.1985 prescribing the guidelines by way of affinity test to claim the Gowari community tribe certificate.

d. By notification dated 16.06.2011 issued by the Government of India, Gowari community was included in the other backward class category from the common Central List in respect of the State of Maharashtra. Adiwasi Gond Govari (Gowari) Seva Mandal claimed that Gowari community and its members have been included in Entry No.18 of the Scheduled Tribes order in relation to the State of Maharashtra and thus, sought a direction to instruct the Sub-Divisional Magistrate to issue the caste certificates to the persons belonging to Gowari community as Scheduled Tribes.

2. The petitioner also challenged Government Resolution dated 24.04.1985, whereby the Government issued guidelines for taking precautionary measures while issuing the tribe certificate and Government Resolution dated 13.06.1995 and 15.06.1995 were under the Government Resolution of the State of Maharashtra, Gowari was treated to be other backward community, a special backward class with 2% reservation.

3. The State of Maharashtra, the Union of India and respondent No. 15 in the third petition, Zanaklal Bhaisaku Mangar appealed to the Supreme Court of India against the aforesaid decision.

Issues of the Case:

Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste “Gowari”, which is not included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as “Gond Govari” which is included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to adjudicate such claim?

Whether the ratio of the judgment of the Constitution Bench of this Court in B. Basavalingappa Vs. D. Munichinnappa, AIR 1965 SC 1269 permits the High Court to take evidence to find out whether ‘Gowari’ are ‘Gond Gowari’ and is there any conflict in the ratio of judgment of Constitution Bench in B. Basavalingappa and subsequent Constitution Bench judgment of this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC 4?

Whether the High Court could have entered into the adjudication of the issue that ‘Gond Gowari’ which is a Scheduled Tribe mentioned in Scheduled Tribes Order, 1950, as amended up to date is no more in existence and was extinct before 1911?

Whether the conclusion of the High Court in the impugned judgment that ‘Gond Gowari’ Tribe was extinct before 1911 is supported on the materials which were on the record before the High Court?

Whether caste ‘Gowari’ is the same as ‘Gond Gowari’ included at Item No.28, Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 and the High Court could have granted a declaration to caste ‘Gowari’ as ‘Gond Gowari’ entitled for Scheduled Tribe certificate?

Whether the High Court is correct in its view that ‘Gond Gowari’ shown as Item No.28 in Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 is not a sub-tribe of Gond, hence, its validity cannot be tested based on affinity test specified in Government Resolution dated 24.04.1985?

The Observations of the Court

The Honourable Supreme Court observed that:

1. In exercise of power under Article 342, the President had issued the Constitution (Scheduled Tribes) Order, 1950 dated 06.09.1950.

2. As per Section 4 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, Constitution (Scheduled Tribes) Order, 1950 was amended and in Schedule III, Entry No.9 was substituted by the following Entry: “9. Gond or Rajgond.”

3. Schedule III contains the modification to the Constitution (Scheduled Tribes) Order, 1950. Part IV of the Schedule dealt with Bombay. Although, Entry No. 9 continued as Gond or Rajgond with regard to the State of Bombay in specific areas, Entry No.12 along with Entry of Gond some sub-tribes were added.

4. After the recommendation of Backward Classes Commission for the State of Madhya Pradesh by Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, with the tribe “Gond” “Gond Govari” was added as the Scheduled Tribes by modification order dated 29.10.1956. With respect to State of Bombay in specific areas, with regard to the entry of Gond as Scheduled Tribe, several sub-tribes including “Gond Govari” was added as noticed above.

5. By Section 8(1)(c) of The States Reorganisation Act, 1956, 8 districts, which then existed in the State of Madhya Pradesh were included in the new Bombay State. In exercise of power under Section 41 of the States Reorganisation Act, Scheduled Castes and Scheduled 29 Tribes Lists modification under Order 1950 was issued dated 29.10.1956.

6. The Second Schedule of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 provides for substitution in Constitution (Scheduled Tribes) Order, 1950. About State of Maharashtra, which was formed, Part IX of the Second Schedule, Entry No.18 deals with Scheduled Tribe “Gond”.

7. The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 amended with respect to Schedule pertaining to Maharashtra in Entry 18 was to the following effect: in entry 18 for “Gond Rajgond” substitute “Gond, Rajgond”. This amendment in the Scheduled Castes order indicates the care which was taken by the legislature in describing the Scheduled Tribes entries.

Issue 1 and 2

8. This Court had to consider as to what extent the Courts including the High court and this Court could interpret the entries in Scheduled Castes and Scheduled Tribes Orders. The High Court has heavily relied on the Constitution Bench judgment of this Court in B. Basavalingappa v. D. Munichinnappa and Ors, AIR 1965 SC 1269. The Constitution Bench held that it is not open to making any modification in the Order by producing evidence to show that though caste A alone is mentioned in the Order, caste B is also a part of caste A. generally it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order.

9. Bhaiya Lal v. Harikishan Singh and Ors., AIR 1965 SC 1557, reiterated that though the appellant was not a Scheduled Caste as enumerated in the Scheduled Castes Order he belonged to another caste, which is sub-caste of Scheduled Caste, cannot be looked into.

10. Srish Kumar Choudhury v. State of Tripura and Ors., 1990 Supp SCC 220 supports the same and reiterated that enquiry is contemplated before the Presidential Order is made.

11. In-State of Maharashtra v. Milind and Ors., (2001) 1 SCC 4 it was held that no enquiry is permissible and no evidence can be let in before the Court for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included. The power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament.

12. Thus, the High Court could not have entertained the claim or looked into the evidence to decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950. Also, there is no conflict in the ratio of the Constitution Bench judgments of this Court in B. Basavalingappa’s case and State of Maharashtra v. Milind and Ors.

Issue 3 and 4

13. The Scheduled Tribe "Gond Gowari" as existing in Item No.28 of Entry 18 of Constitution (Scheduled Tribes) Order, 1950 applicable to the State of Maharashtra is continuing in the List of Scheduled Tribes of Bombay State (now the State of Maharashtra) since 29.10.1956.

14. In reference to the 4th writ petition by Adivasi Gond Govari (Gowari) Sewa Mandal. The fact that before the High Court there was a writ petition where caste certificates granted to 16 respondents of "Gond Gowari" were sought to be quashed proved the existence of community "Gond Gowari".

15. The recommendations by the State of Maharashtra in 1967 and 1979 to include the “Gowari” as Scheduled Tribe were never accepted by the Parliament since despite of passing of several Amendment Acts by the Parliament to the Constitution (Scheduled Tribes) Order, 1950 Entry of "Gond Gowari" in the Scheduled Tribe was never deleted.

16. The book “Tribes and Castes of the Central Provinces of India by R.V. Russell and Rai Bahadur Hira Lal wherein castes "Gond Gowari" and “Gowari” were separately dealt with as distinct castes.

17. The recommendation to include Gowari as a separate Scheduled Tribe was forwarded by the State of Maharashtra in 1979 which was withdrawn in 1981 and after 1981 the State's stand has been that "Gond Gowari" and “Gowari” are two separate castes and Gowari is not entitled to the benefit of Scheduled Tribe certificate for not fulfilling the required criteria.

18. The Government of State of Maharashtra, Tribal Development Department has issued Government Resolution dated 24.04.1985 where the State Government has referred to "Gond Gowari" as small sub-Tribe of Gond and non-Scheduled Tribe caste was referred as Gowari.

19. Thus, it was not open for the High Court to proceed into the inquiry as to whether Scheduled Tribe "Gond Gowari" is not in existence.

20. The High Court relied upon the absence of mention of Gond Gowari in the censuses of 1911, 1921 and 1931 to conclude that it had become extinct before 1911. The Supreme Court observed that mere fact "Gond Gowari" not being mentioned in the census due to change in the basis of the census cannot lead to a conclusion that "Gond Gowari" have become extinct before 1911. Scheduled Tribes and Schedules Castes were excluded if only there was no return in respect of Census of 1961 and 1971. Thus, the basis of the judgement of the High Court was flawed.

21. "Gond Gowari" was added by Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 dated 29.10.1956. This has been conscious addition by Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956 and Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956. It cannot be accepted that the Parliament included Tribe which had become extinct before 1911.

22. The High Court has itself referred to Report of Research Officers dated 12.05.2006 which had Entry of "Gond Gowari" made on 01.07.1955, thus, contradicting its conclusion of extinction in 1911. Also, the issuance of certificates of “Gond Govari” scheduled tribe, whose validity has been challenged, supports the existence of the said tribe.

23.Thus, it was not open for the High Court to proceed into the inquiry as to whether Scheduled Tribe "Gond Gowari" is not in existence.

Issue 5 and 6

24. The caste ‘Gowari’ and ‘Gond Gowari’ are two distinct and separate castes. Russell and Hiralal in the celebrated book, ‘The Tribes and Castes of Central Provinces of India’ have separately dealt with ‘Gowari’ and ‘Gond Gowari’ and have categorically stated that ‘Gond Gowari’ have been treated as distinct castes from ‘Gowari’. The book published by Anthropological Survey of India, People of India, National Series Volume III on “The Scheduled Tribes’ describes ‘Gowari’ as another backward community that has not been included in the list of Scheduled Tribes.

25. Enquiry Report by the Tribal Development Department dated 12.05.2006 revealed that Gowari Caste has a separate existence and its cultural customs and traditions do not match with cultural customs and traditions of Gond or Gond Gowari Tribe which are different.

26. In the Census of 1891 and 1901 which have been referred by the High Court, the population of ‘Gowari’ has been shown separately from the population of ‘Gond Gowari’.

27. The ratio of the Constitution Bench in B. Basavalingappa v. D. Munichinnappa and Ors, AIR 1965 SC 1269 avers that the High Court could not have undertaken the enquiry to declare the caste which is not included in the Scheduled Tribes Order, 1950 as a Scheduled Tribe, and could not have granted a declaration that the caste ‘Gowari’ is ‘Gond Gowari’ which is referred to in Item 28 of Entry 18 of Constitutional Scheduled Tribes Order, 1950 as amended.

28. The High Court’s view that ‘Gond Gowari’ is not a sub-tribe of ‘Gond’, hence, its validity cannot be tested based on the affinity test specified in the Government Order dated 24.04.1985 is also not correct.

The Decision Held by the Court:

The Honourable Supreme Court held that:

1. The High Court erred in declaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referred to in item 28 in Entry 18 of Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976.

2. The admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between 14.08.2018 till the date of judgement i.e., 18.12.2020 shall not be affected by this judgment and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them. However, they shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of the aforementioned Scheduled Tribe certificate.

3. The appeals are allowed.

4. The impugned judgment of the High Court is set aside.

5. The writ petitions are dismissed.

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