HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.22511 of 2007 ORDER:(per Hon’ble Sri Justice Ramesh Ranganathan) The Adilabad District Lingadhari Koya Tribals Association has filed this writ petition seeking a writ of mandamus to declare the action of the 3rd respondent, in issuing proceedings in R.C.No.643/2007/TRI/TEEC dated 19.04.2007 to the 4th respondent, as arbitrary and illegal. They have also questioned the action of the respondents in not issuing Schedule Tribe certificates to members of the ‘Lingadhari Koya’ community as arbitrary, illegal and in violation of principles of natural justice. They seek a direction to the respondents to continue to treat members of the ‘Lingadhari Koya’ community as belonging to the Schedule Tribes and to extend them all the benefits available to the Schedule Tribes. In the notification issued under the Schedule Castes and Schedule Tribes Order,1950 the ‘Lingadhari Koya’ community in Andhra Pradesh finds place at Entry 18 in part-I. It is the case of the petitioner that members of the ‘Lingadhari Koya’ community of Adilabad district, who were issued Schedule Tribes certificates till 2006, were denied these certificates thereafter by the respondents resulting in a large number of them being unable to secure admission into professional courses and in employment. The petitioner- association submitted a representation to the 1st respondent on 14.02.2007 requesting that Schedule Tribes certificates be issued to members of the ‘Lingadhari Koya’ community of Adilabad District in accordance with the Presidential Order. The 3rd respondent, by the impugned proceedings dated 19.4.2007 while drawing attention of the 4th respondent to the letter dated 20.2.2006, and to the representation of the petitioner dated 14.2.2007, informed him that the department had collected detailed information regarding Lingadhari Koyas residing in Khammam and Warangal Districts and ‘Lingadhari’ a caste group residing in the district of Adilabad. A copy of the report was enclosed to the said letter and the 4th respondent was requested to take necessary action on the claims of ‘Lingadhari Koya’ certificates, and the certificates already issued as ‘Lingadhari Koya’ in Adilabad District, in accordance with the rules framed under Act 16 of 1993. The petitioner would contend that the impugned proceedings was issued without any enquiry being conducted, that there was no caste/group by name ‘Lingadhari’ and that ‘Lingadhari Koyas’ residing in Adilabad district could not be deprived of their caste certificates. They would submit that they had earlier filed W.P.No.10557 of 1998 which was disposed of, by order dated 8.7.1998, directing that, as and when applications were received from an individual for grant of Schedule Tribes Certificate in respect of the ‘Lingadhari Koya’ community, the same should be considered and disposed of by the authorities concerned in accordance with law. They would submit that, though the A.P. Scheduled Castes, Scheduled Tribes and Backward classes issue of community, nativity and date of birth rules, 1997 vested power in respondents Nos.5 to 13 to issue caste certificates, they were not exercising the powers conferred on them to issue caste certificates in favour of members of the ‘Lingadhari Koya’ community of Adilabad District. By way of an illustration they would submit that though Challury Kavari and Santha had applied for being granted the Schedule Tribe certificate on 23.05.2007 and the Village Revenue Officer of Bheempur, Narnoor Mandal had enquired and had certified that they belonged to the Schedule Tribe of ‘Lingadhari Koya’, the 4th respondent had refused to received the applications. They would submit that, though applications were submitted by A. Siva Prasad, A. Siva Kumar and A. Srilatha for issuance of Scheduled Tribe certificates enclosing the transfer certificates wherein their caste was shown as ‘Lingadhari Koya’, their applications were also not received. According to the petitioners there were 125 families, belonging to Lingadhari Koya Community in 9 Mandals of Adilabad district, who were aggrieved by the non-issuance of Scheduled Tribes certificate and, as they had a common grievance, they had invoked the jurisdiction of this Court by way of the present writ petition. In their counter-affidavit, the respondents would submit that while persons, seeking ‘Lingadhari Koya’ community certificates as Schedule Tribes, were not entitled for the said social status, the fact also remained that they had never applied for any such certificates either for employment or for admission into professional courses ever since 1988-89, that the Director of Tribal Welfare, after a detailed enquiry, had sent ethnographic information on the Lingadhari Koyas residing in the Districts of Khammam and Warrangal and “Lingadharis” a caste group residing in the District of Adilabad, for taking necessary action in accordance with the rules made under A.P. Act 16 of 1993, regarding issuance of Lingadhari Koya/Schedule Tribe Certificates and on the S.T Certificates already issued as Lingadhari Koyas in Adilabad District. According to the respondents, the ethnographic details of Lingadharis, claiming to be Lingadhari Koyas, in Adilabad district were not similar to that of the Lingadhari Koyas inhabiting Khammam and Warangal districts, that persons living in Adilabad district, claiming S.T. status as Lingadhari Koyas, were merely Lingadharis, (a particular caste group), which had no relationship whatsoever with Koyas, that the mother tongue of this community was Marathi, they also spoke Telugu, they were pure vegetarians, that their staple food was Jowar and rice, that they did not consume liquor, that their main occupation was agriculture and agriculture labour, that they normally celebrated all Hindu festivals, that they prayed to Lord Shiva and put Vibhudi on their forehead, etc. Sri K.G.Kannabiran, Learned Senior Counsel appearing on behalf of the petitioner, would submit that the ethnographic report, enclosed to the impugned proceedings, titled “Report on Social Status of Claimants of ‘‘Lingadhari Koya’ Community living in Adilabad District of Andhra Pradesh”, was prepared without any one of the 125 families of ‘Lingadhari Koya’ residing in Adilabad District being given an opportunity of being heard and that the impugned proceedings and the ethnographic report stood vitiated for violation of principles of natural justice. Learned Senior Counsel would submit that the 125 families, belonging to the ‘Lingadhari Koya’ community in Adilabad district, were being extended the benefits of reservation as Schedule Tribes from 1950 till 2006 and that it was only on the basis of the impugned order, and the ethnographic report enclosed thereto, were they denied the benefits of reservation as Scheduled Tribes from the year 2007 onwards. Learned Senior Counsel would submit that Lingadhari Koyas of Adilabad district were a small group of 125 families and, despite reservation being provided in the Presidential order in favour of Lingadhari Koyas, Scheduled Tribe certificates were not being issued to them and that there was no caste by name ‘Lingadhari’ in Adilabad district. He would submit that Article 342(1) of the Constitution of India conferred power on the President, with respect to any State, to specify, by way of a notification, the Tribes or Tribal communities or part of or groups thereof which would be deemed to be Scheduled Tribes of that caste, that power was conferred only on Parliament, under Article 342(2), to exclude any Tribe or Tribal community or part of or group thereof from the list of Scheduled Tribes notified under Article 342(1), that, under the 1950 Presidential order, Lingadhari Koyas in the entire State of Andhra Pradesh belonged to the Schedule Tribes and that they were not confined only to the Khammam and Warangal Districts. He would submit that the ethnographic report, enclosed to the impugned order, was perfunctory and superficial and that mere change in food habits, place of residence etc., could not be determinative factors in social and anthropological surveys. He would submit that the respondents endeavour was to somehow deny the benefits of reservation to these 125 ‘Lingadhari Koya’ families residing in Adilabad district. He would rely on a book titled “Tribal Cohesion in the Godavari Valley” by Urmila Pingle and Christoph von Furer – Haimendorf, (published in 1998), to contend that ‘Lingadhari Koyas’ were also to be found in Adilabad District. He would also place reliance on a publication by the Tribal Cultural and Training Institute of the Tribal Welfare Department of the Government of Andhra Pradesh in May, 2008 titled ‘Koyas of Andhra Pradesh’. According to the Learned Senior Counsel there was no ground for denying, the 125 Lingadhari Koya families of Adilabad District, the benefits of reservation and issuance of Scheduled Tribe certificates. Learned Government Pleader for Social Welfare would submit that the competent authority, under A.P. Act 16 of 1993 was empowered to examine each individual case to determine whether or not the applicant belonged to a Schedule Tribe. He would also contend that it is not for this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, to sit in judgment over the findings recorded in the ethnographic report. The specific averments, in the affidavit filed in support of the writ petition, that there was no ‘Lingadhari’ caste in Adilabad District, and that Lingadhari Koyas of Adilabad district were being issued Schedule Tribes Certificates ever since 1950 till 2006 has not been rebutted except for a bare denial in the counter affidavit filed by the respondents. It is not known whether there is any caste by name ‘Lingadhari’ in the Adilabad District of the State of Andhra Pradesh. It is evident from the material on record that none of the families, who claim Schedule Tribe status as ‘Lingadhari Koyas’ of Adilabad district, were given an opportunity of being heard before the ethnographic report, on the basis of which the impugned proceedings were issued, was finalized. While the ethnographic report, enclosed to the impugned proceedings refers to the various habits, customs and practices of the ‘Lingadhari Koyas’ in Khammam and Warangal districts and the so called ‘Lingadharis’ of Adilabad District, it is useful to note that Christoph von Furer – Haimendorf, in his book “Tribal Cohesion in the Godavari Valley”, (1998 edition), observed thus:- “…….In the Adilabad district there are approximately 11,230 Koyas, but these do not form a compact group occupying a specific area but are dispersed over several parts of the district, and according to their location and main occupation are referred to by the following names: 1. Gommu Koya:- dwellers on river banks 2. Lingadari Koya:- Shaivite priests 3. Campa Koya:- basket makers 4. Musari Koya:- brass workers 5. Gutta Koya :- mountain dwellers 6. Dolo Koya :- traditional bards of Koya All the members of these subdivisions except Dola Koya style themselves as Racha Koya and Dorala sattam. Similarly in ‘Koyas of Andhra Pradesh’, a publication of the Tribal Cultural Research and Training Institute Tribal Welfare Department, (published in May, 2008), it is observed, under the Chapter “Social System”, thus:- “The Koya tribe is divided into several functional endogamous groups which are further divided into certain exogamous clans similar to Gond phratry system. A. Aiyappan in his report on the “socio-economic conditions of Aboriginal Tribes of the province of Madras” mentioned about the following sub-divisions or subsects. It is believed that all the sub-divisions became different sub-tribes. 1. Gutta Koya or Racha Koya 2. Gommu Koya or Dora Chattam 3. Kammara Koya Blacksmith or Carpenter 4. Musara Koya – Brass worker 5. Gampa Koya- Basket maker 6. Oddi Koya- Priest 7. Pettadi Koya- Beggar 8. Doli Koya – Mala (Musicians) 9. Kaka Koya – Kapu 10. Matwa Koya or Matta – Golla 11. Lingh Koya – Saivites He opined that serial No.8 to 11 are not real Koyas but plainsmen admitted into Koya tribe. The sub-divisions described by Aiyappan are only functional groups and some names are over lapping and misleading. Generally Raqcha Koyas and Gutta Koyas are two distinct sub-divisions. The Racha Koyas are generally found in plain areas where as Gutta Koyas live onhill tops. The nomenclature Dorala Chattam is referred to all Koyas and not to a particular sub-group of Gommu Koyas. Gommu means river banks and Koyas living on river banks are called Gommu Koyas. Linga Koya is a separate group who professes saivism and wears ‘lingam’ in their neck. They are pure vegetarians……...” The aforesaid passages have been extracted, not to re-appreciate the findings in the ethnographic report enclosed to the impugned order, but only to note that other studies have shown that Lingadhari Koyas also exist in Adilabad district of the State of Andhra Pradesh. Part-1, of the Schedule to the Constitution (Schedule Tribe) Order, 1950, enumerates the list of Schedule Tribes in Andhra Pradesh. Entry No.18 thereof read thus: “Koya, (Doli Koya, Gutta Koya, Kammara Koya, Musara Koya, Oddi Koya, Pattidi Koya) Rajah, Rasha Koya, Lingadhari Koya, Bhine Koya, Rajkoya” Under the Presidential order, certain Tribes have been declared as Schedule Tribes provided they hail from certain specific districts. For instance Entry -30 of part-I relating to the State of Andhra Pradesh reads thus: “Thoti (in Adilabad, Hyderabad, Karimnagar, Khammam, Mahabubnagar, Medak, Nalgonda, Nizamabad and Warangal districts)” On the other hand no such limitation has been prescribed in so far Koyas, including Lingadari Koyas, are concerned. Lingadari Koyas, whichever district they belong to within the State of Andhra Pradesh, are Schedule Tribes entitled to the benefits of reservation. The benefits of reservation as Schedule Tribes cannot, therefore, be restricted only to Lingadhari Koyas of Khammam and Warangal Districts of Andhra Pradesh. The power to exclude a Tribe, from the list of Schedule Tribes in the Presidential order, has been conferred, by Article 342 of the Constitution of India, on Parliament alone. Neither the State Legislature nor the State Government have been conferred any such powers much less the 3rd respondent herein. The impugned order, which by way of an executive fiat denies the Lingadhari Koyas of Adilabad District the benefits of reservation, is therefore arbitrary and illegal. It is also evident that schedule tribe status has been conferred on members of the petitioner’s association, as Lingadhari Koyas of Adilabad district, (ever since the Presidential order was issued in the year 1950), till the year 2006. As such they, as a class, could not have been denied the benefits of reservation as Schedule Tribes without being afforded an opportunity of being heard before the ethnographic report was prepared and finalized. While the benefits of reservation should undoubtedly not be extended to those who are not entitled thereto, it is also essential that such benefits which the Lingadhari Koyas of Adilabad district have been extended for more than four decades, is not denied to them on the basis of an ethnographic report prepared behind their back thereby denying them an opportunity of placing evidence, to the contrary, in support of their claim to be Lingadhari Koyas in Adilabad District. The impugned proceedings dated 19.4.2007, which seeks to make a distinction between Lingadhari Koyas of Khammam and Warangal Districts and Lingadari Koyas of Adilabad district must, therefore, be and is, accordingly, quashed. The respondents shall receive applications submitted by members of the Petitioner Association, and others similarly situated, and consider their case for grant of Schedule Tribes certificates in accordance with law, without placing reliance on the ethnographic report enclosed to the impugned order, within a period of three months from the date of receipt of the applications. The Writ Petition is allowed to the extent indicated hereinabove. However, in the circumstances, without costs. ___________________ ANIL R. DAVE, CJ _____________________________ RAMESH RANGANATHAN, J Date: .07.2009 Gk/Cvrk HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.22511 of 2007 (per Hon’ble Sri Justice Ramesh Ranganathan) Date: .07.2009 Gk