TaxTMI 
TaxTMI 
2000 (11) TMI 1232
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....h the appeals and writ petition as party respondent is granted. The name of the Union of India may be shown as the party respondent when the matter is listed. Both the sides agree that this matter involves a question which has been decided by the Constitution Bench consisting of 5 Hon'ble Judges of this Court and that there is also a subsequent judgment of a Division Bench of 2 Hon'ble Judges of this Court. One of the points raised is that there is a conflict between the two judgments. Under the circumstances, both sides state that this is a fit case for being referred to the Constitution Bench. We accordingly direct that this matter be placed before the Hon'ble Chief Justice for placing the same before the Constitution Bench. Both the sides state that the matter is very urgent and the matter be listed for early hearing. This request may, however, be addressed to the Constitution Bench." Pursuant to the said order, the appeal is placed before us for consideration and decision. The facts briefly stated to the extent they are relevant and required for the decision are the following. The respondent no. 1 herein filed the Writ Petition No. 2944/84 at the Nagpur Bench of....
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....ment of the father of the respondent, who accepted that these entries related to him, his father and his step-sister Shantabai, daughter of Bajirao Koshti. In his statement, he further admitted that all his relatives have married in their own caste and there was no instance of inter-caste marriage having taken place; in the records, name of the caste and occupation were separately mentioned. His own explanation was that entry 'Koshti' found in the documents did not indicate caste but it only pertains to occupation. The appellate authority looking to various other entries in the register found that the caste and occupation are separately mentioned. It was also noticed that the respondent no. 1 did not tender any evidence to show that he belonged to 'Halba-Koshti' sub-caste. The appellate authority referring to various imperial Gazetteers and other public documents for a period of 150 years came to the conclusion that the 'Koshti' was an independent and distinct caste having no relationship or identity with the 'Halba'/'Halbi' Scheduled Tribe. It also took note of the Circular dated 13.2.1984 issued by the Central Government that 'Halba-Koshtis' were seeking undue benefits of reserva....
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....ective 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). Per contra, Mr. G.L. Sanghi, the learned senior counsel for the respondent no. 1 made submissions supporting and justifying the ultimate conclusion arrived at in the impugned judgment and order of the High Court. According to him, the old records relating to the period when there was no controversy, clearly supported the case of the respondent no. 1 and the school leaving certificate issued to the respondent no. 1 was valid. He also submitted that it was open to show that a particular caste was part of Scheduled Tribes coming within the meaning and scope of tribal community even though it is not described as such in the Presidential Order. The learned senior counsel was not in a ....
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....ent notification." By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Casts or Schedules Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said Articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words 'castes' or 'tribes' in the expression 'Scheduled Castes' and 'Scheduled Tribes' are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Article 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Ord....
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....ed in the Presidential Orders issued under clause (1) of Articles 341 and 342 is to be determined looking to them as they are. Clause (2) of the said Articles does not permit any one to seek modification of the said orders by leading evidence that the caste / tribe (A) alone is mentioned in the Order but caste / tribe (B) is also a part of caste / tribe (A) and as such caste / tribe (B) should be deemed to be a scheduled Caste / Scheduled Tribe as the case may be. It is only the Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the Entries in the Schedules pertaining to each State whenever one caste / tribe has another name it is so mentioned in the brackets after it in the Schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Schedule Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said Articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not....
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....Parliament, Entry 19 is not amended for adding 'Halba-Koshti' in the said Entry. Looking to the other Entries extracted above in the same part, it is clear that wherever a particular area was to be excluded, it is so done by mentioning the same in the concerned (Entry relating to a tribe). Similarly, if a tribe or tribal community had other names and they were to be included in the Entry, it is done by mentioning them specifically. When there was agitation and representation to include 'Halba Koshti' within Scheduled Tribes even long before Amendment Act, 1976 was passed and the very fact that 'Halba-Koshti' was not included within Entry 19 relating to 'Halba/Halbi', negatives the claim of the Respondent No. 1. Further if 'Halba Koshti' was part of group or sub-tribe of 'Halba'/ 'Halbi' Tribe, there was no need for representation to include it before Parliamentary Joint Committee. In the debates of Constituent Assembly (Official Report, Vol. 9) while moving to add new Articles 300-A and 300-B after Article 300 (corresponding to Articles 341 and 342 of the Constitution), Dr. B.R.Ambedker explained as follows :- "The object of these two articles, as I stated, was to eliminate t....
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.... President had the benefit of consulting States through Governors of States which had the means and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it is the Parliament that is in a better position to know having means and machinery unlike courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or tribunals to hold enquiry as to whether a particular caste or tribe should be considered as one included in the Schedule of the Presidential Order, when it is not so specifically included, may lead to problems. In order to gain advantage of reservations for the purpose of Articles 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This apart when no other authority other than the Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor tribunals nor any authority can assume jurisdiction to hold enquiry and take eviden....
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....puted that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to courts to find out which caste was meant by Bhovi is to take evidence in that behalf. If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mentioned as Bhovi in the Order, one has to determine which was the caste which was meant by that word on its inclusion in the Order. It is this peculiar circumstance therefore which necessitated the taking of evidence to determine which was the caste which was meant by the word "Bhovi" used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956." Again a Constitution Bench of this Court in a later decision in Bhaiyalal vs. Harikishan Singh and Others did not accept the plea of the appellant that although he was not a Chamar as such he could claim the same status by reason of the fact that he be....
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....rder; otherwise the normal rule would be :"It may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste a and, therefore, must be deemed to be included in caste A". That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted." (emphasis supplied) It may be noticed that in both the Constitution Bench judgments (supra), P.B.Gajendragadkar, C.j., K.N. Wanchoo, and M.Hidayatullah JJ. were common members. In Parasram and Anr. vs. Shivchand and Ors. referring to the two Constitution Bench judgments of this Court in Basavallingappa and Bhaiyalal aforementioned, this Court declared that :- "These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazetteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether mochi and chamar in some parts of the State at least meant the same caste although there might....
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....his Court in Palghat Jilla Thandan Samudhaya Samrakshna Samithi & Anr. vs. State of Kerala & Anr. has held that neither the State Government nor the court can enquire into or let in evidence relating to any claim as belonging to Scheduled Castes in any Entry of the Scheduled Castes Order. Scheduled Castes Order has to be applied as it stands until the same is amended by appropriate legislation. Para 20 of the said judgment reads thus:- "Learned counsel for the State relied upon the decision in Bhaiya Ram Munda vs. Anirudh Patar referred to in paragraph 15 of the judgment in Srish Kumar Choudhury case for the view taken there was that evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to mean. In paragraphs 8, 9, 10 and 11 of the judgment, in Srish Kumar Choudhury case the Constitution Bench judgments referred to above are discussed, as also two other judgments taking the same view. Then, in paragraph 14, the judgments of this Court in the case of Dina vs. Narayan Singh and Bhiya Ram Munda vs. Anirudh Patar are referred to and it is stated that both were rendered by the same Bench of two learned Judges. Paragraph 14 goes on ....
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.... is not for us to examine it and come to a conclusion that if a person was in fact a Mochi, he could still claim to belong to the Scheduled Caste of Chamars and be allowed to contest an election on that basis." The High Court again, in paragraph 24 of the impugned judgment, observed that, "it is quite clear that the list once prepared by the President can be amended only by the Parliament and by none else". Having said so, the High Court went wrong in relying on Division Bench judgments of this Court in the cases of Bhaiya Ram Munda and Dina and the Full Bench decision of Orissa High Court in K.Adikanada Patra vs. Gandua (AIR 1983 Orissa 89), to take a contrary view in saying that there was no legal bar in holding enquiry as to whether 'Halba-Koshti' is a part and parcel or sub division of 'Halba'/'Halbi' or not. We have no hesitation in saying that the High Court committed a serious error in not following the aforementioned two Constitution Bench judgments of this Court and preferring to follow Division Bench judgments of this Court and the Full Bench judgment of Orissa High Court which did not lay down the law correctly on the question. Being in respectful agreement, We rea....
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...., Khapa, for the period 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 the respondent no. 1 on other grounds to which we will refer hereafter. Even otherwise, looking to the evidence placed on record and ....
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....e." The High Court applied the doctrine of stare decisis on the grounds that the decisions referred to above were considered judgments; even Government accepted their correctness in the courts; the State Government independently took the same view after repeated deliberations for number of years; taking a contrary view would lead to chaos, absurd contradictions resulting in great public mischief. In our view, the High Court was again wrong in this regard. The learned senior counsel for the respondent no. 1 was not in a position to support this reasoning of the High Court and rightly so in our opinion. In the decisions listed above except the first two decisions, all other decisions were rendered subsequent to two Constitution Bench judgments (supra) of this Court. The first two judgments were delivered in 1956 and 1957. In this view, the High Court was not right in stating that the decisions were rendered during a long span of over 34 years by different benches of different High Courts, consistently holding that 'Halba-Koshti' is 'Halba'. The rule of stare decisis is not inflexible so as to preclude a departure therefrom in any case but its application depends on facts and ci....
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....ly 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 ....
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....re 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 ti....
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....tional 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 tribu....
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....s other disadvantages, certain provisions are made in the Constitution with a view to see that they also have the opportunity to be on par with others in the society. Certain privileges and benefits are conferred on such people belonging to Scheduled Tribes by way of reservations in admission to educational institutions (professional colleges) and in appointments in services of State. The object behind these provisions is noble and laudable besides being vital in bringing a meaningful social change. But, unfortunately, even some better placed persons by producing false certificates as belonging to Scheduled Tribes have been capturing or cornering seats or vacancies reserved for Scheduled Tribes defeating the very purpose for which the provisions are made in the Constitution. The Presidential Orders are issued under Articles 341 and 342 of the Constitution recognizing and identifying the needy and deserving people belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the constitutional purpose of availing benefits of reservation in the matters of admissions and employment. If these benefits are taken away by those for whom they are not meant, the people for whom t....