IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 WA.No. 798 of 2007 -------------------------------- AGAINST THE JUDGEMENT IN O.P. 7274/2000 Dated 02/02/2007 .................... APPELLANTS/PETITIONERS IN THE OP. ------------------------------------------------------- 1. P.M.SAYED (DIED), S/O.LATE ATTAKOYA THANGAL, PADANNATHA HOUSE, ANDROTT ISLAND, UNION TERRITORY, LAKSHADWEEP. 2. RAHAMATH SAYEED, W/O.LATE SRI.P.M.SYEED, PADANNATHA HOUSE, ANDROTT ISLAND, UNION TERRITORY, LAKSHADWEEP. 3. A.B.ZAGUDA SAYEED, D/O.THE LATE P.M.SAYEED, PADANNATHA HOUSE, ANDROTH ISLAND, U.T.OF LAKSHADWEEP. 4. A,B.M.HANDULLA SAYEED, S/O. LATE P.M.SAYEED, PADANNATHA HOUSE, ANDROTT ISLAND, UNION TERRITORY, LAKSHADWEEP. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.), SRI.K.RAMACHANDRAN (THYKOODAM), SRI.K.V.JOY, SRI.ANTONY MUKKATH & SMT.K.RADHAMANI AMMA RESPONDENTS/RESPONDENT NOS.1 TO 3 IN THE OP: ------------------------------------------------------------------------------ 1. ADMINISTRATOR, UNION OF TERRITORY OF LAKSHADWEEP, KAVARATTY. 2. THE SUB DIVISIONAL OFFICER, ANDROTT ISLAND, UNION TERRITORY OF LAKSHADWEEP. WA NO.798/07 3. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI. R1 & R2 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN. R3 BY ADV. SHRI JOHN VARGHESE. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2008 ALONG WITH OP NO.25529/02L, THE COURT ON 03/04/2008 DELIVERED THE FOLLOWING: H.L. DATTU, CJ. & K. M. JOSEPH, J. -------------------------------------------------- W.A. NO. 798 OF 2007 E & O.P. NO. 25529 OF 2002 L --------------------------------------------------- Dated this the 3rd April, 2008 JUDGMENT K.M. JOSEPH, J. Since common questions arise in these cases, they are disposed of by a common Judgment. 2. W.A. No.798/07 is directed against the Judgment of the learned Single Judge wherein the learned Judge followed the decision of this Court in W.A. No.1422/05 as the case of the appellants was squarely covered by the said decision. 3. In both these cases, the issue that falls for our consideration and decision is whether a person born to parents who are themselves Scheduled Tribes as notified by the Presidential Notification, is disentitled to the status of Scheduled Tribe on account of the fact that he or she is born on the main land. The President has by Ext.P1 Notification issued under Article 342 of the Constitution, inter alia, provided as follows: "342:- In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, as amended by the Constitution (First Amendment) Act, 1951, the President is pleased to make the following Order, namely:- (2) The tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to III of the Schedule to this Order shall, in relation to the Union Territories to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that WA 798/07 & OP 25529/02 2 Schedule. (Part I - Lakshadweep) Throughtout the Union Territory: Inhabitants of the Lacadive, Minicoy and Amindiv Islands who, and both of whose parents, were born in those Islands." 4. As already mentioned, though their parents are entitled to be treated as Scheduled Tribes, appellants 2 and 3 in W.A. No.798/07 and petitioner in OP No.25529/02 are denied the status of Scheduled Tribes for the reason that they were born not within the territories of the Laksha Dweep Islands. 5. This issue is not res integra. A Division Bench of this Court has considered the very same issue and has come to the conclusion that it may not be open to the Court to add to or otherwise re-write a Notification issued by the President under Article 342 of the Constitution. However, Shri O.V. Radhakrishnan, learned senior counsel appearing on behalf of the appellants and the writ petitioner would contend before us that the Notification in question is capable of a construction/interpretation which would lead to the elimination of an apparent anomaly. He would submit that this Court may be persuaded to read the word "and" in Part I as "or". He would submit that without including anyone as a Member of the Scheduled Caste/Tribe which was unintended by the President, a person who is entitled to be treated as a member of the Scheduled Tribe would come within the ambit of the Notification, if this beneficial course is adopted by us. He sought to derive support from the following decisions: (i) In State of Punjab v. Ajaib Singh and another (AIR 1953 SC 10), the Court held as follows: "The Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rights to practical WA 798/07 & OP 25529/02 3 inconvenience or make well established provisions of the existing law nugatory." The decision in Sameekhan v. Bindukhan ((1998) 7 SCC 59) is an authority relied on for the proposition that the word "and" need not be necessarily be understood as denoting a conjunctive sense and can be read in the context as "or". In M.P.A.E.B. v. Union of India (2006) 10 SCC 736), the Court took the view that in the face of an ambiguous statute, a construction which better serves the ends and answers the principles of fairness and justice should be accepted. In D.P. Joshi v. State of Madhya Bharath (AIR 1955 SC 334) related to admission to Medical College and the complaint was regarding discriminatory treatment on the ground of place of birth. The Court took the view that residence and place of birth are two distinct conceptions and Article 15 (1) prohibits discrimination based on the place of birth, which cannot be read as prohibiting discrimination based on residence. In State of Maharashtra v. Milind And Others ((2001) 1 SCC 4), the Court was dealing with a question essentially as to whether it is permissible to hold an enquiry to decide whether any Tribe or Tribal Community or part of a group within a Tribal Community is included in the general name, even though it is not specifically mentioned in the Entry concerned in the Schedule Tribe Order, 1950. The Apex Court proceeded to hold as follows: " 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. Allowing the State Governments or Courts or other authorities or Tribunals to hold inquiry 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 article 15(4) or 16(4) several WA 798/07 & OP 25529/02 4 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 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 inquiry 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. Therefore, it has to be held that it is not at all permissible to hold any inquiry or let in any 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 entry concerned in the Constitution (Scheduled Tribes) Order, 1950. Moreover, the Scheduled Tribes Order must be read as it is. It is not even 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." 6. In E.V. Chinnaiah & Others v. State of A.P. and Others ((2005) 1 SCC 394), the issue related to Article 341 of the Constitution of India. The Court took the view that the Presidential List of Scheduled Caste is one class of persons and sub- classification is not permissible. 7. Shri O. V. Radhakrishnan, learned senior counsel would contend that the Notification must, therefore, be interpreted by the Court for which it indeed has the authority in law in a manner which advances the object of the law. He would submit that nobody can possibly dispute that the persons in question are born to parents who are indeed in law and on facts are entitled to be treated as Scheduled Tribe. For the mere reason that they were born on the main land, for the reason that the WA 798/07 & OP 25529/02 5 medical condition so required, it would be absurd and unjust to deny them the benefit of the status of Scheduled Tribe for the mere reason that they were not born on the Islands. Thus, it is, therefore, contended that the place of birth cannot be a ground for discrimination between persons who are otherwise entitled to the benefit of Articles 14 and 15 and thus entitled to the treatment as Scheduled Tribe. He would further submit that the Division Bench of this Court has taken the view that the Courts are without authority or power to interfere in the matter which may not be accepted. 8. Per contra, respondents would contend that the interpretation sought to be placed upon the Notification by the learned counsel for the petitioner and the appellants may not be correct and it may lead to anomalous results resulting it conferring benefit on persons who are clearly not entitled to be treated as Scheduled Tribes. It is pointed out that if the word "and" is read as "or", then a person born on the Island to persons who are not born on the island and what is more, who are not Scheduled Tribes, if he is an inhabitant, he would also become entitled to the benefit of the status of Scheduled Tribe. This would lead to a totally unintended bonansa for a person who is otherwise not a member of the Scheduled Tribe and this would be the result of the Court deviating from the principle that there is no authority for the Courts meddling with the terms of the Notification. It is contended that it is only open to the parliament to displace the terms embodied in the Notification. He would further contend that the complaint of the petitioner and the appellants that the view on the basis of which their claims are rejected is violative of Article 15 of the Constitution, being based on the place of birth, is misplaced. He relied on Article 15 (4) which reads as follows: "15(4): Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled WA 798/07 & OP 25529/02 6 Tribes." In the light of the same, he contends that the argument is only to be rejected. 9. After going through the materials on record and the case law which are produced before us, we are of the firm view that it may not be open to the petitioner and the appellants to seek relief from this Court. The Division Bench in W.A. No.1422/05 considered the very same question and taking support from the decision of the Apex Court in State of Maharashtra v. Milind And Others ((2001) 1 SCC 4). the Court held as follows: " We may hasten to add Presidential Orders once issued under Article 341(1) and 342 cannot be varied by subsequent order or notification even by the President except by law made by Parliament. The State Government or any other authority or Courts or Tribunals are not vested with any power to modify or interpret the Presidential Orders, but only by Parliament by law. No enquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe be included in Presidential Order, if they are not expressly included in the orders and any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile and holding any inquiry or letting in any evidence in that regard is impermissible. We are of the view, on a reading of the Presidential Order we find no ambiguity. Presidential Order has employed a deeming provision leaving no room for doubt that only inhabitants of the Lakshadweep Islands who and both of whose parents were born in those Islands would alone fall within the Presidential Order, 1951. Court cannot tinker with the Presidential Order on the ground that the same would amount to under inclusiveness. Hence persons belonging to the same group have been left out on the basis of place birth, an exercise in our view, can be undertaken only by Parliament by law. We, therefore, allow WA. 1422 of 2005 and dismiss the Writ Petition." WA 798/07 & OP 25529/02 7 10. We agree with the Division Bench that exclusion of the children born on the main land of Scheduled Tribe parents in the island may be irrational and arbitrary and that it may also to be afflicted by under-inclusiveness, but it is not a matter where it may be open to the Court to tinker with the terms of the Notification. We cannot overlook the results which may be produced by reading the word "and" as "or". We do not see any reason to disagree with the views taken by the Division Bench in W.A. No.1422/05. In such circumstances, the Writ Appeal and the Original Petition are liable to be dismissed and accordingly they stand dismissed. No orders as to costs. CMP Nos. 43299/02 & 17724/03 are closed. H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, kbk. JUDGE