Dismissed

Sant Ladhunath Nayak Sewa Anr. v. Union of India and Ors.

Rajasthan HC16 Nov 2018CW/496/2013

Case brief

AI extract

What is this about?

This writ petition challenged the inclusion of 'Nayak' community in the Scheduled Castes list in the Rajasthan Presidential Order under Articles 341 and 342, seeking their declaration as Scheduled Tribes. The High Court dismissed the petition, holding that only Parliament has the power to amend Presidential Orders and courts cannot expand their scope to alter lists. The court also held that the En

What the court decided

AI extract

Sant Ladhunath Nayak Sewa Anr. Vs… — Constitutional and Fundamental Rights | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No.496/2013

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Sant Ladhunath Nayak Sewa Sanstha, Sikar (Registered under the Societies Registration Act bearing Registration No.32/2012-13), Behind Court, Mohalla Nayakan, Ward No.7, Sikar (Raj.) through its President Sitaram Nayak son of Shri Durga Prasad Nayak, aged about 56 years, resident of behind Court, Mohalla Nayakan, Ward No.7, Sikar (Raj)

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Sitaram Nayak son of Shri Durga Prasad Nayak, aged about 56 years, resident of behind Court, Mohalla Nayakan, Ward No.7, Sikar (Raj)

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----Petitioners

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Versus

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Union Of India through its Secretary, Ministry of Social Justice and Empowerment, Shastri Bhawan, New Delhi

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Secretary, Ministry of Tribal Affairs, Government of India, Shastri Bhawan, Rafi Marg, New Delhi

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Director, National Commission for Scheduled Tribes, Lok Nayak Bhawan, Khan Market, New Delhi

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Chief Secretary, Government of Rajasthan, Government Secretariat, Jaipur (Raj.)

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Principal Secretary to Government, Department of Social Welfare, Government of Rajasthan, Government Secretariat, Jaipur (Raj.)

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District Collector, Jaipur (Raj.)

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District Collector, Sikar (Raj.)

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Additional District Magistrate, Sikar (Raj.)

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Tehsildar, Sikar (Raj.)

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Anushuchit Janjati Sanyukt Sansthan, Registered Office C- 62, Bal Nagar, Kartarpura, Jaipur (Raj.) through its General Secretary, Dr. G.S. Somawat son of late Shri K.R. Somawat, aged about 61 years, resident of C-62, Bal Nagar, Kartarpura, Jaipur (Raj.)

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----Respondents

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For Petitioner(s)	:	Mr. Ajay Gupta with Mr. Raja Venkatappa Naik
For Respondent(s)	:	Mr. B.S. Chhaba, Assistant Solicitor General for Union of India Ms. Anita Agarwal with Mr. Praneet Sharma for respondent no.10 Mr. Rishi Pal Agarwal, Additional Government Counsel for respondent State

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

//Reportable//

Judgment

16/11/2018

Per Hon’ble Mr. Justice Mohammad Rafiq:

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This writ petition has been preferred by Sant Ladhunath Nayak Sewa Sanstha, Sikar, through its President Sitaram Nayak, as petitioner no.1, which is registered as a charitable society under the Societies Registration Act, and Sitaram Nayak son of Shri Durga Prasad Nayak, himself as petitioner no.2, inter-alia with the prayer that the respondents be directed to issue Scheduled Tribe certificate to the petitioner no.2 as well as all the members of the Nayak community in the whole of the State, treating them to be the members of the Scheduled Tribes category of the State of Rajasthan. Prayer is also made for issuing a

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direction to the respondents to delete the term ‘Nayak’ from Serial No.57 of Part XIV Rajasthan of Schedule-1 of the Constitution (Scheduled Castes) Order, 1950, as incorporated on 20.09.1976, which came into force with effect from 22.07.1977 by declaring the same to be violative of Articles 341 and 342 of the Constitution of India. Further direction has been sought to the respondents to continue only ‘Thori’ caste listed under the Scheduled Caste list of Rajasthan State and the caste prefixed as ‘Nayak’ be deleted therefrom in the interest of justice and equity.

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Mr. Ajay Gupta, learned counsel for the petitioners, has submitted that the Rajasthan State has been referred to in Part XIV, Rajasthan, in the Constitution (Scheduled Castes) Order, 1950, which was issued on 11.08.1950, wherein caste ‘Thori’ was described as Scheduled Caste at Serial No.42. Similarly, in the Constitution (Scheduled Tribes) Order, 1950, which was issued on 06.09.1950, Rajasthan State has been referred to in Part XII, wherein the Scheduled Tribes of Rajasthan State have been shown. Therein ‘Nayak’ community has been shown as Scheduled Tribe. However, the revision in the Constitution (Scheduled Tribes) Order, 1950, took place on 27.07.1977 and Entry No.10 of Part XIII Rajasthan describes the castes of Scheduled Tribes as ‘Naikda, Nayak, Cholivala Nayak, Kapadia Nayak, Mota Nayak, Nana Nayak’. In Part 15-Rajasthan of the First Schedule attached to the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, promulgated on 18.09.1976, two castes ‘Thori’, ‘Nayak’ have been separately included at Serial No.57 thereof as Scheduled Castes. However, in Part XIII relating to Rajasthan, of the Second Schedule attached to the Act of 1976, the castes ‘Naikda’, ‘Nayak’, ‘Cholivala Nayak’, ‘Kapadia Nayak’, ‘Mota Nayak’,

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‘Nana Nayak’ have been included as Scheduled Tribes at Serial No.10 thereof.

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Mr. Ajay Gupta, the learned counsel for the petitioners, also referred to the list of Scheduled Castes and Scheduled Tribes in Rajasthan published in the Gazette of India Extra Ordinary Part-II dated 20.09.1976 by the Ministry of Law, Justice and Company Affairs (Law Department), Government of India, and at serial no.10 of the Scheduled Tribes therein, the castes, namely, ‘Naikda’, ‘Nayak’, ‘Cholivala Nayak’, ‘Kapadia Nayak’, ‘Mota Nayak’, ‘Nana Nayak’, have been mentioned. The learned counsel for the petitioners submitted that the book Census of India 1951, Rajasthan and Ajmer Part-I General Description and Census Table Book No.I/745, B/2 VI on Page No.7, indicates that in the list of Scheduled Castes published in the Notification, Gazette of India, Extraordinary Part II, Section 3, No.27, dated 11^th August, 1950, Order No.S.R.C.510 dated 6^th September, 1950’, the caste ‘Thori’ has been mentioned at its serial no.42 separately. However, in the first column of Table XV-F.- captioned “Principal Castes Supported Mainly By Agriculture”, which are the castes based on traditional occupation, the caste ‘Thori’ mentioned at its bottom is described as ‘Hunters and followers’. It is thus evident that ‘Naik’ and ‘Thori’ have already been treated different and distinct. The Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 was published vide Notification dated 29.10.1956 by the Ministry of Home Affairs and in its Part XI-Rajasthan, which is applicable throughout the State except Ajmer district, Abu Road taluka of Sirohi district and Sunel Tappa of Jhalawar district. The caste ‘Thori’ or ‘Nayak’ is mentioned at its serial no.53 as Scheduled Caste as per Schedule-I thereof. However, the modification to the

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Constitution (Scheduled Castes) (Part C States) Order, 1951 of the Schedule-II of Part XI-Rajasthan, which is applicable throughout the State except Ajmer district, Abu Road taluka of Sirohi district and Sunel Tappa of Jhalawar district, the castes ‘Naikda’ or ‘Nayaka’, including ‘Cholivala Nayaka’, ‘Kapadia Nayaka’, ‘Mota Nayaka’ and ‘Nana Nayaka’ have been included in the Scheduled Caste category at its serial no.13.

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The learned counsel therefore argued that ‘Nayak’ should have been treated as member of Scheduled Tribe, which is distinct from ‘Thori’ caste. The Deputy Director, Department of Social Welfare, Government of Rajasthan, was informed on 04.02.1985 by the Chief Minister Secretariat that ‘Nayak’ community is declared as Scheduled Tribe and persons applying for caste certificate be issued ST certificate and all benefits be extended to ‘Nayak’ community as such. The Deputy Director gave reply to one Kesuram of Suratgarh, District Ganganagar on 27.05.1989 stating that ‘Nayak’ community is declared as Scheduled Tribe and all benefits be extended to them as such. The Joint Director, Department of Social Welfare, Bikaner, on a query by the Tehsildar, Bikaner, vide letter dated 30.01.1995, informed him that caste ‘Nayak’ is included at Serial No.10 in the list of Scheduled Tribes, hence the persons of ‘Nayak’ community are entitled to the Scheduled Tribe certificates. The petitioner no.2 submitted a representation to the Tehsildar, Sikar, to issue him certificate showing him as a person belonging to Scheduled Tribe category, yet he was issued the SC certificate on 09.11.2009. The petitioner vide letter dated 18.04.2012 again requested the Tehsildar, Sikar, to issue him ST certificate by cancelling the SC certificate. The Tehsildar, Sikar, thereupon wrote a letter on 25.04.2012 to the

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District Collector, Sikar, seeking guidance on the subject. The Additional District Magistrate, Sikar, vide letter dated 04.05.2012 addressed to the Tehsildar, Sikar, clarified that Scheduled Castes have been notified in accordance with Article 341 of the Constitution and Scheduled Tribes in accordance with Article 342 of the Constitution and if ‘Nayak’ community is covered by the criterion of Scheduled Tribe, it should be issued the ST certificate. If some members of the same community have been issued a particular certificate, then other persons of the same community cannot be discriminated against. It is submitted that the petitioner also submitted a representation dated 09.04.2012 to His Excellency the President of India, New Delhi, with copy to other authorities, with similar request, but that too was of no avail.

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Mr. Ajay Gupta, the learned counsel for the petitioners, submitted that the respondents in reply to the writ petition have stated that the Kaka Kalekar Backward Class Commission report included ‘Nayak’ caste as synonymous of ‘Thori’ in the list of Scheduled Caste and such recommendation of the Commission was examined by the Government of India. Vide the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956, ‘Nayak’ caste was included in the Scheduled Caste category as synonymous of ‘Thori’ caste. This plea of the respondent Union of India is not correct, which would be evident from what has been observed by the Supreme Court in para 30 of the Constitution Bench judgment in Indra Sawhney and Others Vs. Union of India and Others – 1992 Supp (3) SCC 217 , wherein it has been mentioned that “by a Presidential Order under Article 340 of the Constitution of India, the first Backward Class Commission known as Kaka Kalekar Commission was set up on January 29,

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1953, which submitted its report on March 30, 1955 listing out 2399 castes as socially and educationally backward on the basis of criteria evolved by it, but the Central Government did not accept that report and shelved it in the cold storage”. The learned counsel therefore argued that the case set up by the respondents before this court is that the caste ‘Nayak’ prefixed was taken as synonymous with ‘Thori’, and to fall in the Scheduled Caste category, is wholly unfounded. It is argued that in the revision in the Constitution (Scheduled Tribes) Order, 1950, took place on 27.07.1977 the Entry No.10 of Part XIII Rajasthan describes the caste ‘Nayak’ as Scheduled Tribe and therefore it has to be treated ‘Nayak’ in Hindi language carrying the same meaning as the ‘Nayaka’ in English term.

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The learned counsel, in support of his argument, has relied on the judgment of the Supreme Court in State of Maharashtra Vs. Milind and Others – (2001) 1 SCC 4 , wherein the Supreme Court observed that it is not at all permissible to hold an enquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. The Supreme Court held that the Schedule Tribes Order must be read as it is. It is not permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. The Supreme Court further held that a notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. It is not open to State

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Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes. The Supreme Court declared its earlier decisions in Bhaiya Ram Munda Vs.

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Anirudh Patar and Others – (1970) 2 SCC 825 and Dina Vs. Narayan Singh (1971 38 ELR 212) to be per-in-curium and not laying down the correct law. The learned counsel prayed that it may be declared that ‘Nayak’ and ‘Nayaka’ is one and the same and no distinction can be drawn in Hindi and English version.

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It is argued that initially ‘Thori’ and ‘Nayak’ were shown only in the list of Scheduled Castes, however, by virtue of the amendment incorporated on 20.09.1976 by the Government of India, area-wise restrictions have been removed, therefore, the persons only in Ganganagar district were treated as being of Scheduled Caste. Learned counsel has relied on the judgment of the Punjab and Haryana High Court in Buta Ram Azad and Others Vs. Union of India and Another – (1982) SCC Online P&H 321 and the Full Bench decision of the Bombay High Court in Shilpa Vishnu Thakur Vs. State of Maharashtra and Others – (2009) SCC Online Bom 705 , to argue that indications of primitive traits, distinctive culture, geographical isolation, shyness of contacts with the community at large and backwardness are the criteria for identifying the community as the Scheduled Tribe, in contra distinctions to those of the Scheduled Castes. The different parameters, therefore, would apply to the two.

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Mr. B.S. Chhaba, the learned Assistant Solicitor General appearing on behalf of the respondent Union of India, argued that in the list of Scheduled Castes of Rajasthan, contained in Part XIV of the Schedule of the Constitution (Scheduled Castes) Order, 1950, as amended from time to time, caste ‘Thori’, ‘Nayak’

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community appear at serial no.57. After the promulgation of the Constitution of India, the list of Scheduled Caste in relation to the State of Rajasthan was notified vide the Constitution (Scheduled Castes) Order, 1950. In the said list, the ‘Thori’ community appeared at serial no.42. In respect of the then Part C State of Ajmer ‘Thori’ community was notified as a Scheduled Caste vide the Constitution (Scheduled Castes) (Part C States) Order, 1951 and that appeared at serial no.37. The Government had set up the Backward Classes Commission in 1953 known as the Kaka Kalelkar Commission, which was requested to revise the lists of Scheduled Castes and Scheduled Tribes also. The said Commission recommended inclusion of ‘Nayak’ as a synonym of ‘Thori’ in the list of Scheduled Castes of Rajasthan. The said recommendation of the Commission was examined and vide the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, ‘Nayak’ caste was included in the list of Scheduled Castes of Rajasthan as a synonym of ‘Thori’.

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The learned Assistant Solicitor General further submitted that the States were re-organized in the year 1956. Section 41 of the States Reorganization Act, 1956, had authorized the President to re-promulgate the lists of Scheduled Castes and Scheduled Tribes, taking into account the territorial changes. Accordingly, the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956, was promulgated by the President on 29.10.1956. In the said Order, ‘Thori’ or ‘Nayak’ was notified as a Scheduled Caste throughout the State except Ajmer district, Abu Road taluka of Sirohi and Sunel Tappa of Jhalawar district. When representations were made to the Government under the Scheduled Castes and Scheduled Tribes orders, some communities were specified as

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Scheduled Castes or as Scheduled Tribes only in certain areas of the State concerned and not in respect of the whole of the State. This had been causing difficulties to the members of these communities in the areas where they had not been so specified. It was decided to remove the area restrictions except in those cases where continuance of such restrictions were specifically recommended by the Joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967. Accordingly, the area restriction in respect of majority of the communities including ‘Thori’, ‘Nayak’ community of Rajasthan was removed vide the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 with effect from 27.07.1977 and the said community now stood notified throughout the State of Rajasthan as a Scheduled Caste.

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It is argued that the Union of India is the nodal agency for notification of Scheduled Castes under the provisions of Article 341 of the Constitution of India. The subject of issue of Scheduled Castes certificate and their verification rests with the concerned State Government/Union Territory Administrations. Whether the petitioners belong to “Thori, Nayak” community appearing at Serial No.57 of the list of Scheduled Castes of Rajasthan or “Naikda’, ‘Nayaka’, ‘Cholivala Nayaka’, ‘Kapadia Nayaka’, ‘Mota Nayaka’, ‘Nana Nayaka” appearing at serial no.10 of the list of the Scheduled Tribes of the Rajasthan can only be ascertained by the Government of Rajasthan as a question of fact? Since ‘Nayak’ community was included in the list of Scheduled Castes of Rajasthan as a synonym of ‘Thori’ vide the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, in accordance with the provisions of Article 341(2) of the Constitution of India,

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the said Act cannot be subjected to judicial scrutiny and lacks adjudicatory disposition in view of the constitutional insulation contained in Article 122 of the Constitution. So far as deletion of ‘Nayak’ sub-caste from the list of Scheduled Castes of Rajasthan is concerned, the learned Assistant Solicitor General submitted that no such proposal was ever received by the Government of India from the Government of Rajasthan, to delete the ‘Nayak’ community from the list of Scheduled Castes, in accordance with the modalities laid down by the Government of India in June, 1999, as subsequently amended in June, 2002. The learned Assistant Solicitor General therefore submits that the writ petition be dismissed.

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Mr. Rishi Pal Agarwal, the learned Additional Government Advocate appearing on behalf of the respondent State, also opposed the writ petition. He has adopted most of the arguments raised by Mr. B.S. Chhaba, the learned Assistant Solicitor General. He submitted that ‘Nayak’ community in the State of Rajasthan cannot be extended any benefit of reservation under the Scheduled Tribes category. He denied that ‘Nayak’ is a tribal community. It is argued that in the list of Scheduled Tribes appended to the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, castes ‘Naikda’, ‘Nayak’, ‘Cholivala Nayak’, ‘Kapadia Nayak’, ‘Mota Nayak’, ‘Nana Nayak’ have only been included at serial no.10 as the Scheduled Tribes and not the ‘Nayaka’. ‘Thori’, ‘Nayak’ are separately included at serial no.57 of the list of Scheduled Castes. In the Hindi version thereof, in the list of Scheduled Castes, pertaining to the State of Rajasthan, ‘Thori’, ‘Nayak’ have been mentioned at serial no.57 and in the list of Scheduled Tribes, ‘Nayak’ was mentioned at serial no.10. This

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gave rise to a situation where ‘Nayak’ came to be mentioned in both the lists of Scheduled Castes and Scheduled Tribes in the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976 published in Hindi version. In this regard, the Ministry of Tribal Affairs, Government of India, Shastri Bhawan, New Delhi, vide letter dated 27^th /28^th January, 2009, clarified that community names given in Hindi as “Nayak” at serial no.10, was correctly notified in the English version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 dated 20.09.1976 as “10…., Nayaka, ….” have been wrongly spelt in Part XIII relating to the list of Scheduled Tribes in Rajasthan in the Hindi version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 notified on 01.10.1979. The existing entry in respect of the Scheduled Tribes in Rajasthan would need to be modified as “10…., Nayaka, …..”

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It is argued that the aforesaid clarificatory letter and the Article 348(1)(b) of the Constitution provides that “the authoritative text – (ii) of all Acts passed by the Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State; and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by the Parliament or the Legislature of a State shall be in the English version.” Hence the authoritative text of the notification namely the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, may be taken as the one which is in English version, which was issued on 20.09.1976. The confusion that was created owing to the typographical or printing error in the Hindi version of the list pertaining to the Scheduled Castes

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and Scheduled Tribes Orders (Amendment) Act, 1976 has thus been clarified.

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We have bestowed our thoughtful consideration to rival submissions and perused the material on record.

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Article 341 of the Constitution of India deals with the Scheduled Castes and Article 342 deals with the Scheduled Tribes. The President is empowered to specify the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under Clause (1) of Articles 341 and 342 of the Constitution, the Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification. The object of both these Articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to the social backwardness with which they suffered for a considerable period of time. The Supreme Court in State of Maharashtra Vs. Milind and Others , supra, clearly laid down that the State has no power to amend the Presidential Orders issued under Articles 341 and 342 of the Constitution. It further held that the courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste, a group or part of tribe or sub-tribe is included in any one of the Entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said Article, it is expressly stated that said orders cannot be amended or varied except by law made by Parliament.

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The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with the Parliament and that too by making a law in that regard. It is the Parliament alone which can do so. The courts are not in a position to decide as to whether a particular caste or tribe is included in or excluded from the Scheduled Castes or Scheduled Tribes. The law as laid down by the Supreme Court in State of Maharashtra Vs. Milind and Others , supra, therefore makes the position clear.

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The Supreme Court in State of Maharashtra Vs. Milind and Others , supra, categorically held that 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. 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 evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one Entry or the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any enquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included.

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We may in this connection also refer to the Full Bench judgment of the Patna High Court in Rakesh Sharma vs State Of Bihar And Ors. - 1997 (1) BLJR 279 , wherein somewhat identical dispute was referred to the Full Bench as to whether the members of 'Lohar' caste in the State of Bihar, who are admittedly 'backward class', have right to claim the privileges available to the members of 'scheduled tribe' by virtue of the Presidential Order. The petitioners in those cases who were ‘Lohars’, which was recognized as a ‘backward’ caste in the State of Bihar. However, by virtue of the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, they claimed that they are covered by Item No.22 of Part III Bihar. In that case, it was also pointed out that in the Scheduled Castes and Scheduled Tribes Amendment Order, 1976, Lohar has not been mentioned as a member of Scheduled Tribe but ‘Lohras’ or ‘Loharas’ have been so mentioned. The learned Single Judge of Patna High Court held that 'Lohar' does not belong to any tribe thus cannot be included in the list of "Scheduled tribe" in terms of entry No. 22 of Scheduled Tribes Order, 1950. Since 'Loharas' or 'Lohras' were bracketed together, evidently the Parliament intended to convey that they are the members of the same tribe. One of the petitioners claimed that he was granted Scheduled Caste certificate by the B.D.O., Giridih in the year 1982. Later he came to know that ‘Lohar’ caste has been declared as Scheduled Tribe when Supreme Court in S.L.P. No. 5684/90 held that 'Lohars' are members of the Scheduled Tribe. The petitioner therefore prayed for a direction to the respondents to issue certificate that the petitioner is a member of Scheduled Tribe for appointment in the quota reserved for the members of

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the Scheduled Tribes. In those facts, it was observed by the Full Bench of the Patna High Court as under:-

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“40. The confusion was created because of the Hindi version of the Act which is inconsistent with the English version of the Act. Sinha, J., was of the view that in view of clause 3 of Article 348 of the Constitution of India, the authoritative text of the Act in the English language shall prevail over the Hindi version. Mr. Bharuka, J., in his separate concurring judgment held that English version should prevail over its Hindi translation, but the reasoning given by Sinha, J., for taking this view did not appeal to Bharuka, J.

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The Authoritative Text (Central Laws) 1973 provides for authoritative text of Central laws in any language specified in 8th Schedule of the Constitution. Section 2 of the Act provides as follows:

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“A translation of any language other than Hindi specified in 8th schedule of the Constitution published under the authority of the President of India official gazette:

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a. Of any Central Act or of any Ordinance promulgated by the President; or

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b. of any order, the regulation or bye-law issued under the Constitution or under any Central Act, shall be deemed to be the 'authoritative texts' thereof in such language.”

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In the instant case, the text of the Act is in English and Hindi. In the Hindi version, instead of 'Lohra' the word 'Lohar' has been included at entry No. 22. The English version mentions 'Lohra' and 'Lohara'. But Sinha, has rightly held that English version would prevail over the Hindi version. Under clause (3) of Article 348, the English version of an Act or rule, regulation or by laws etc. is to be treated as 'authoritative text' in case of conflict between English version and Hindi version.”

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The Union of India in its stand taken before the Punjab and Haryana High Court in Buta Ram Azad , supra, has stated that following criteria was adopted for declaring a community either as a Scheduled Caste or a Scheduled Tribe:-

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“(a) Scheduled Castes:- Extreme social, educational and economic backwardness arising our of traditional practice of untouchability.

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(b) Scheduled Tribes:- Indications of primitive traits, distinctive culture, geographical isolation, shyness of contacts with the community at large and backwardness.”

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From the reading of the criteria adopting for declaring the community either as Scheduled Caste or Scheduled Tribe, it is clear that if a community has extreme social, educational and economic backwardness arising out of traditional practice of untouchability then it is included in the list of the Scheduled Castes and if, however, a community has indications of primitive traits, distinctive culture, geographical isolation, shyness of contacts with the community at large and backwardness, it is included in the list of Scheduled Tribes.

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In Kumari Madhuri Patil and Another Vs. Additional Commissioner, Tribal Development : (1994) 6 SCC 241 , the Supreme Court held that sociology, anthropology and ethnology are valid elements that would go into the determination as to whether a particular applicant in fact belongs to a Scheduled Tribe. One of the arguments which was pressed in aid was that social mobility and the process of modernisation obviate the need to fulfill the affinity test.

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Adverting now back to the present case, we find from the record that the State Government wrote letters on 14.08.2008 and 01.09.2008 to the Central Government seeking clarification owing to the difference in the English and Hindi version with regard to ‘Nayak’ community. Similar letters were also written with

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regard to ‘Koli’ community on 23.10.2008 and 06.01.2009. The Ministry of Tribal Affairs, Government of India, Shastri Bhawan, New Delhi, has issued a clarificatory letter dated 27^th /28^th January, 2009, copy of which has been placed on the record of the file. It was clarified that as per the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 dated 20.09.1976 (in English) and it’s Hindi version notified on 01.10.1979, the existing entries relating to Scheduled Castes & Scheduled Tribes read as

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under:-

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“ Scheduled Castes :

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Koli, …..”/”Koli, …..”

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“57. ……, Nayak”/”57……, Nayak”

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It appears that community names given in Hindi as “Nayak” at Sr. No.10 & “Koli, Dhor” at Sr. No.8 while correctly notified in the English version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 dated 20/09/1976 as “10. ……, Nayaka, …….” and “8. Koli Dhor, ……..”, have been wrongly spelt in Part 13 relating to the list of Scheduled Tribes in Rajasthan in the Hindi version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 notified on 1.10.79. The existing entry in relation to Scheduled Tribes in Rajasthan would need to be modified as:-

¶104

“8. Koli Dhor, …….”

¶105

“10. ……., Nayaka, ……..”

¶106

Article 348(1)(b) of the Constitution under Chapter III provides as “the authoritative text – (ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State; and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or

¶107

(19 of 22)

¶108

[CW-496/2013]

¶109

the Legislature of a State shall be in the English language”. Hence, authoritative text of the notification namely the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 may be taken as the one which is in English language, which has been issued on 20/09/1976.

¶110

In view of the above, the State Government of Rajasthan is requested to issue Scheduled Tribe’s Certificate to the genuine Scheduled Tribe persons only in terms of Article 348 of the Constitution.

¶111

ii). Further, as the State Government of Rajasthan has also pointed out other typographical errors in its aforecited letters, it is further requested that a self contained proposal along-with specific recommendations required under Article 342 of the Constitution as well as the modalities approved by the Government on 15/06/1999 for modifications in the Hindi list of Scheduled Tribes of the State, be sent to this Ministry for consideration, for amending the Hindi version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 dated 1.10.79.”

¶112

Therefore, whether or not the respondents have wrongly pleaded before this Court that inclusion of ‘Nayak’ in the Scheduled Castes list, which in its earlier phase was confined to certain parts of the State and later included in the category of the Scheduled Castes for whole of the State, consequent upon acceptance of the recommendations of the Kaka Kalekar Backward Class Commission report, the consequence remains the same that the ‘Nayak’ community stands included in the list of the Scheduled Castes along-side ‘Thori’, in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, which was notified on 20.09.1976. The confusion that was created owing to the typographical or printing error in the Hindi version of the list pertaining to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 has been clarified by the Government of India vide letter dated 27^th /28^th January, 2009 (Annexure R/10/6).

¶113

(20 of 22)

¶114

[CW-496/2013]

¶115

The Government of India has laid down modalities in June, 1999, which were subsequently amended in June, 2002 as per the counter-affidavit of the respondents, in which the procedure for modification in the list of Scheduled Castes and Scheduled Tribes, has been prescribed. The Union of India has taken a specific stand that no such proposal has ever been received by it in accordance with the said procedure. We are thus inclined to countenance the argument of the Union of India that any change could be sought only by adhering to the aforesaid procedure and no such procedure in the present case appears to have been adverted to by the State Government and therefore the Central Government would be fully justified in taking that view.

¶116

The Supreme Court in Srish Kumar Choudhury Vs. State of Tripura – (1990) Supp SCC 220 , has held that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined to showing what an entry in the Presidential Order is intended to mean. It is however not open to the Court to make any addition or subtraction from the Presidential Order.

¶117

The Full Bench of the Bombay High Court in Shilpa Vishnu Thakur , supra, following the judgment of the Supreme Court in Kumari Madhuri Patil , supra, held as under:-

¶118

“The principle that no authority other than Parliament by law can amend the Presidential orders was reiterated by the Supreme Court in State of Maharashtra v. Mana Adim Jamat Mandal (supra). Entry 18 to Part 9 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 interalia designates the Mana Community as a Scheduled Tribe. Entry 18 designates several tribes including Gond. The Supreme Court held that each of the tribes mentioned in Entry 18 was a separate tribe by itself and not a subtribe of Gond. Therefore, 'Mana' is not a subtribe of

¶119

(21 of 22)

¶120

[CW-496/2013]

¶121

Gond but a separate tribe by itself and is a Scheduled Tribe.”

¶122

In view of the authoritative pronouncement of law by the Supreme Court in Milind and Others , supra, we are inclined to hold that this court is not in a position to declare that ‘Nayak’ community has been wrongly included in the list of Scheduled Castes pertaining to the State of Rajasthan in the Presidential Order, as modified by the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, and should have been included in the list of Scheduled Tribes. Whatever may have been the reasons for inclusion of ‘Nayak’ along-side ‘Thori’ in the list of Scheduled Caste category, this court cannot go into the correctness of the same. As far as the mention of ‘Nayak’ in the Hindi version of the list pertaining to the Scheduled Tribe at serial no.10 of Hindi version appended to the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, it has been authoritatively clarified by the Government of India as would be evident from the letter dated 27^th /28^th January, 2009 of the Ministry of Tribal Affairs, Government of India, Shastri Bhawan, New Delhi. The Article 348(1)(b) of the Constitution under Chapter XXX provides as “the authoritative text – (ii) of all Acts passed by the Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State; and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by the Parliament or the Legislature of a State shall be in the English version”. Therein, ‘Nayak’ has been completely spelt and included in the list of Scheduled Castes, and it has to be taken as the correct version.

¶123

(22 of 22)

¶124

[CW-496/2013]

¶125

In view of the above discussion, we do not find any merit in the present writ petition, which is accordingly dismissed with no order as to costs.

¶126

(GOVERDHAN BARDHAR),J

¶127

(MOHAMMAD RAFIQ),J

¶128

//Jaiman//