THE STATE OF MAHARASHTRA & ANR. versus KESHAO VISHWANATH SONONE & ANR.
[2020] 11 S.C.R. 597, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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THE STATE OF MAHARASHTRA & ANR.
v.
KESHAO VISHWANATH SONONE & ANR.
(Civil Appeal No. 4096 of 2020)
DECEMBER 18, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Constitution of India – Article 342 –Constitution (Scheduled
Tribes) Order, 1950 – High Court allowed writ petitions inter alia
declaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referred
to in Entry 18, 1950 Order – On appeal, held: Art.342(2) provides
that any inclusion or exclusion from the list of Scheduled Tribes
specified in a notification issued u/Art.342(1) can be done only by
Parliament by law – High Court could not have entertained the
claim or looked into the evidences to find out and decide that tribe
“Gowari” is part of Scheduled Tribe “Gond Gowari” included in
the 1950 Order – No conflict in the ratio of Constitution Bench
judgments in B. Basavalingappa case reported as [1965] SCR 316
and Milind case reported as [2000] 5 Suppl. SCR 65 – Further, High
Court also could not have entered into the issue that “Gond Gowari”
is no more in existence and became extinct before 1911 –Caste
‘Gowari’ is not the same as ‘Gond Gowari’ – High Court erred in
declaring ‘Gowari’ as ‘Gond Gowari’, a Scheduled Tribes referred
to in item 28 in Entry 18 – Impugned judgment set aside – Writ
petitions dismissed – Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1956 – States Reorganisation Act, 1956 –
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,
1976 – Scheduled
Castes and Scheduled Tribes Orders (Amendment)
Act, 2002.
Allowing the appeals, the Court
HELD: 1.1  Part XVI of the Constitution deals with “Special
Provisions relating to certain classes”. Article 342 of the
Constitution deals with Scheduled Tribes. Article 366(25) defines
Scheduled Tribes. In exercise of power under Article 342, the
President had issued the Constitution (Scheduled Tribes) Order,
1950 dated 06.09.1950. The Schedule contains details of
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Scheduled Tribes with reference to different States. Part III to
the Schedule deals with the State of Bombay and Entry No.9 of
Part III mentioned “9. Gond”. Part IV dealt with Madhya Pradesh
where also Entry No.12 mentions “Gond [including Madia (Maria)
and Mudia (Muria)]”. The Parliament passed an Act namely, The
Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1956 to provide for the inclusion in, and the exclusion from
the lists of Scheduled Castes and Scheduled Tribes, of certain
castes and tribes and matters connected therewith. As per Section
4 of the Act, 1956, Constitution (Scheduled Tribes) Order, 1950
was amended in the manner and to the extent as specified in
Schedule III. In Schedule III, Entry No.9 was substituted by
following Entry:- “9. Gond or Rajgond.” Part IV which deals with
Madhya Pradesh, Entry 12 was substituted. [Paras 26-30][621-
D, G; 622-B, E-H]
1.2 Amendment to the Scheduled Tribes with respect to
Madhya Pradesh was consequent to recommendations by the
report of the Backward Classes Commission also known as
Kalelkar Commission. With regard to Madhya Pradesh with
regard to list of Scheduled Tribes published in Constitution
(Scheduled Tribes) Order, 1950 together with the revision
suggested by the Backward Classes Commission is included in
volume II of the Report. Entry No.12 in the List of the Scheduled
Tribes was with respect to Gond [including Madia (Maria) and
Mudia (Muria)].
Backward Classes Commission suggested
addition of several sub-tribes of Gond with Gond.  Column No.VI
of the Table contains heading “Commission’s recommendation
for inclusion”. The States Reorganisation Act, 1956 was enacted
by Parliament to provide for the reorganisation of the States of
India and for matters connected therewith. Section 8 provided
for formation of a new Bombay State. By virtue of Section 8(1)(c)
certain districts, which then existed in the State of Madhya
Pradesh were included in the new Bombay State. The said districts
were earlier part of the State of Madhya Pradesh. Section 41 of
the States Reorganisation Act provide for modification of the
Scheduled Castes and Scheduled Tribes Orders with regard to
territorial changes and formation of new States under the
provisions of Part II. In exercise of power under Section 41 of
the States Reorganisation Act, Scheduled Castes and Scheduled
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Tribes Lists modification under Order 1950 was issued dated
29.10.1956. Part IV of the Schedule dealt with Bombay. Schedule
III contains the modification to the Constitution (Scheduled
Tribes) Order, 1950. Thus, after recommendation of Backward
Classes Commission for the State of Madhya Pradesh by virtue
of Act, 1956, with the tribe “Gond” “Gond Govari” was added as
the Scheduled Tribes by modification order dated 29.10.1956.
With respect to State of Bombay in specific areas, with regard to
entry of Gond as Scheduled Tribe, several sub-tribes including
“Gond Govari” was added. [Paras 31-34][624-D-F; 626-B-C, D-
F; 628-A-B]
1.3 The Parliament enacted the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 (Act No.108
of 1976) to provide for the inclusion in, and the exclusion from
the list of Scheduled Castes and Scheduled Tribes, of certain
castes and tribes, for the re-adjustment of representation of
parliamentary and assembly constituencies in so far as such re-
adjustment is necessitated by such inclusion or exclusion and for
matters connected therewith. The Statements of Objects and
Reasons of the Bill is relevant. The second Schedule of the Act,
1976 provides for substitution in Constitution (Scheduled Tribes)
Order, 1950 as indicated therein. With regard to State of
Maharashtra, which was formed, Part IX of the Second Schedule,
Entry No.18 deals with Scheduled Tribe “Gond”. Subsequently,
the Parliament passed the Scheduled Castes and
Scheduled Tribes
Orders (Amendment) Act, 2002. The only amendment which was
made with respect to Schedule pertaining to Maharashtra in Entry
18 was to the following effect:- “(i)  in Part IX – Maharashtra- (i)
omit entry 12; (ii) in entry 18 for “Gond Rajgond” substitute
“Gond, Rajgond”; (iii) omit entry 45;”
The above amendment in the Scheduled Castes order
indicate the care which was taken by the legislature in describing
the Scheduled Tribes entries. By the above amendment in earlier
Entry No.18 of “Gond Rajgond”, substitution was made by which
now it is read as “Gond, Rajgond”. [Paras 35-39][628-B-D; 629-
B-C, E, H; 630-B-C]
1.4 Following questions arise for consideration:-
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1) Whether the High Court in the writ petition giving rise
to these appeals could have entertained the claim of the caste
“Gowari”, which is not included as Scheduled Tribe in the
Constitution (Scheduled Tribes) Order, 1950, that it be declared
a Scheduled Tribe as “Gond Govari” which is included at Item
No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable
in the State of Maharashtra and further to take evidence to
adjudicate such claim?
2) Whether the ratio of the judgment of the Constitution
Bench of this Court in B. Basavalingappa Vs. D. Munichinnappa,
AIR 1965 SC 1269 permits the High Court to take evidence to
find out whether ‘Gowari’ are ‘Gond Gowari’ and is there any
conflict in ratio of judgment of Constitution Bench in B.
Basavalingappa and subsequent Constitution Bench judgment
of this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC
4?
3) Whether the High Court could have entered into the
adjudication of the issue that ‘Gond Gowari’ which is a Scheduled
Tribe mentioned in Scheduled Tribes Order, 1950, as amended
up to date is no more in existence and was extinct before 1911?
4) Whether the conclusion of the High Court in the
impugned judgment that ‘Gond Gowari’ Tribe was extinct before
1911 is supported on the materials which were on record before
the High Court?
5) Whether caste ‘Gowari’ is same as ‘Gond Gowari’
included at Item No.28, Entry 18 of the Constitution (Scheduled
Tribes)
Order, 1950 and the High Court could have granted
declaration to caste ‘Gowari’ as ‘Gond Gowari’ entitled for
Scheduled Tribe certificate?
6) Whether the High Court is correct in its view that ‘Gond
Gowari’ shown as Item No.28 in Entry 18 of the Constitution
(Scheduled Tribes) Order, 1950 is not a sub-tribe of Gond, hence,
its validity cannot be tested on the basis of affinity test specified
in Government Resolution dated 24.04.1985?[Para 40][630-C-
H; 631-A-C]
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1.5 QUESTION NOS. 1 AND 2
The Constitution of India contains ample provisions for
fulfilment of the Constitutional aspirations of social justice to the
Scheduled Castes and Scheduled Tribes and to socially and
educationally backward classes of citizens. Articles 341 and 342
and Part XIV of the Constitution contains several provisions as
special provisions relating to certain classes. Article 342 of the
Constitution envisages public notification specifying the tribes
or tribal communities or parts of or groups within tribes or tribal
communities which shall be for the purposes of this Constitution
be deemed to be Scheduled Tribes in relation to a State after
consultation with Governor thereof. Sub-clause (2) contains
another important provision which provides that any inclusion or
exclusion from the list of Scheduled Tribes specified in a
notification issued under clause (1) of Article 342 can be done
only by Parliament by law. Sub-clause (2) of Article 342, thus,
contains a provision conferring authority only to the Parliament
to include and exclude a Scheduled Tribe in the list as specified
in the sub-clause (1) of Article 342. [Para 41][631-C-F]
1.6 The High Court could not have entertained the claim
or looked into the evidences to find out and decide that tribe
“Gowari” is part of Scheduled Tribe “Gond Gowari”, which is
included in the Constitution (Scheduled Tribes) Order, 1950.
There is no conflict in the ratio of Constitution Bench judgments
of this
Court in B. Basavalingappa’s case and State of Maharashtra
Vs. Milind and Ors. The ratio of B. Basavalingappa’s case as
noted in paragraph 6 of the judgment is reiterated by subsequent
two Constitution Bench judgments in Bhaiya Lal’s case and
Milind’s case.  There being no conflict in the ratio of the above
Three Constitution Bench judgments, there is no substance in
submission that for resolving the conflict, the matter need to be
referred to a larger Constitution Bench. Thus, question Nos.1
and 2 are answered accordingly in following words:-
(i) The High Court in the writ petition giving rise to these
appeals could not have entertained the claim of a caste “Gowari”
that it be declared a Scheduled Tribe as “Gond Gowari” included
at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950
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nor High Court could have taken evidence to adjudicate the above
claim.
(ii) There is no conflict in the ratio of the judgment of
Constitution Bench of this Court in Basavalingappa’s case and
Milind’s case. [Para 61][645-G-H; 646-A-D]
2.1 QUESTION NOS. 3 AND 4
The Scheduled Tribe “Gond Gowari” as existing in Item
No.28 of Entry 18 of Constitution (Scheduled Tribes) Order, 1950
applicable to State of Maharashtra is continuing in the List of
Scheduled Tribes of Bombay State (now State of Maharashtra)
since 29.10.1956. To a large number of members of the “Gond
Gowari” caste Scheduled Tribe certificates have been issued by
the competent authority in the State of Maharashtra from time to
time. In Writ Petition No. 4779 of 2008 (Adivasi Gond Govari
(Gowari) Sewa Mandal through its President vs. State of
Maharashtra and others)(one out of the four writ petitions before
the High Court) the writ petitioner has prayed for quashing and
setting aside the caste validity certificates issued in the name of
respondent Nos. 4 to 19 as “Gond Gowari”, Scheduled Tribe.
The fact that before the High Court there was a writ petition
where caste certificates granted to 16 respondents of “Gond
Gowari” were sought to be quashed clearly proved the existence
of community “Gond Gowari”. Although there have been
recommendations by the State of Maharashtra earlier in the year
1967 and thereafter in the year 1979 to include the “Gowari” as
Scheduled Tribe, the said recommendations were never accepted
by the Parliament since in spite of passing of several Amendment
Acts by the Parliament to the Constitution (Scheduled Tribes)
Order, 1950 Entry of “Gond Gowari” in the Scheduled Tribe was
never deleted. A private bill to delete Entry of “Gond Gowari”
and substitute it by Gowari was not passed by the Parliament and
turned down. The High Court has also referred to and relied on
the book “Tribes and Castes of the Central Provinces of India by
R.V. Russell and Rai Bahadur Hira Lal wherein castes “Gond
Gowari” and “Gowari” were separately dealt with as distinct
castes. It is also on the record that the State of Maharashtra even
though it had recommended vide letters dated 26.03.1979 and
12.06.1979 to include Gowari in the list of Scheduled Tribes but
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on 06.11.1981 State of Maharashtra wrote to Ministry of Home
Affairs, New Delhi dealing with the subject of the Scheduled Tribes
in paragraph 3(iii). The State Government recommended Gowari
not to be included as they having not fulfilled criteria of Scheduled
Tribe. It is to be noted that in letter dated 26.03.1979 of the
Government of Maharashtra to the Union of India although
recommendation was made to include Gowari in Scheduled Tribe
but there was no recommendation to delete “Gond Gowari” from
the list of Scheduled Tribes. Thus, the recommendation to include
Gowari as a separate Scheduled Tribe was forwarded by the State
of Maharashtra in the year 1979 which was withdrawn in 1981
and after 1981 the State’s stand has been that “Gond Gowari”
and “Gowari” are two separate castes and Gowari is not entitled
for the benefit of Scheduled Tribe certificate. The Government
of State of Maharashtra, Tribal Development Department has
issued G.R. dated 24.04.1985 where the State Government has
referred to “Gond Gowari” as small sub-Tribe of Gond and non-
Scheduled Tribe caste was referred as Gowari. Along with the
Government Resolution dated 24.04.1985 a comparative Chart
was annexed of Scheduled Tribe and non-Scheduled Tribe
community which was claiming benefit. The materials which were
on the record before the High Court as well as continuance of
“Gond Gowari” as Scheduled Tribe in the Constitution (Scheduled
Tribes) Order, 1950 for the last more than 60 years,
it was not
open for the High Court to proceed into the inquiry as to whether
Scheduled Tribe “Gond Gowari” is not in existence. [Paras 62-
65][647-A-D, F-G; 648-B-D; 649-E-F]
2.2  The High Court itself has in its judgment noticed and
found the mention of “Gond Gowari” in Census of 1891 and 1901.
The substantial figures of “Gond Gowari” in the above two
Censuses in Nagpur Division were noticed. The High Court itself
having noticed that the basis of Census in 1911 was changed,
classification was made on the basis of traditional occupation in
which group IV was of Forest and Hill Tribes and Group V was of
Graziers and Dairymen, the figures of 1911, 1921 and 1931 have
been noticed where in Group V Graziers and Dairymen, there
was mention of Gowari. Mere fact that in Censuses of 1911, 1921
and 1931 figures were given only of Group V, i.e., Graziers and
Dairymen and there was no mention of “Gond Gowari” cannot
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lead to conclusion that “Gond Gowari” have become extinct
before 1911. A Scheduled Tribe which admittedly was in existence
and had a distinct identity shall not be treated to have become
extinct merely because the basis of Census has been changed in
the subsequent years. The benefit given to a Scheduled Tribe
cannot be taken away on the basis of figures given in Census
operation only. There have been amendments in Constitution
(Scheduled Tribes) Order, 1950 from time to time. Several Tribes
were deleted from the list by the Act of Parliament and several
new Tribes were included. There had been recommendations by
the Joint Committee of Parliament for exclusion of the Tribes
which were excluded if there was no return in respect of those
communities in Censuses of 1961 and 1971. Statement of Objects
and Reasons of The Scheduled Castes and Scheduled Tribes
Orders (Amendment) Bill, 1976 clearly indicates that those
Scheduled Tribes and Schedules Castes were excluded if only
there was no return in respect of Census of 1961 and 1971. Thus,
the whole basis of judgment of the High Court that Tribe “Gond
Gowari” was extinct prior to 1911 Census and in subsequent
Censuses 1911, 1921 and 1931 they were not shown in Group V
is completely flawed. The inclusion of sub-Tribe as “Gond Gowari”
in the Constitution (Scheduled Tribes) Order, 1950 was on
29.10.1956 when sub-Tribe “Gond Gowari” was included in the
Scheduled Tribe list it
has to be presumed that the said inclusion
was after consultation with the State and after considering the
relevant materials. The High Court could not have questioned
the inclusion of the Scheduled Tribe “Gond Gowari” in the
Constitution (Scheduled Tribes) Order, 1950 on the basis of
reasoning as adopted by the High Court. The High Court has
referred to and relied on the book “Tribes and Castes of the
Central Provinces of India” by R.V. Russell and Rai Bahadur Hira
Lal in which book in Volume III community Gond, “Gond Gowari”
and Gowari were all separately dealt with. “Gond Gowari” has
been treated as a distinct caste and in the Census they have been
amalgamated with Gowari. The account given by Russell does
not lead to any conclusion that “Gond Gowari” were extinct before
1911. [Paras 70, 71 and 74][651-E-H; 652-A-B, D-G; 654-C]
2.3 It was after the report of Backward Classes Commission
(1955), where recommendation was made to include Gowari as
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sub-tribe of Gond for the State of Madhya Pradesh, consequently
by Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1956 in State of Madhya Pradesh “Gond Gowari” was added
in Entry 12 and after re-organisation of the State, in Districts
which came into State of Bombay, “Gond Gowari” was added by
Scheduled Castes and Scheduled Tribes Lists (Modification)
Order, 1956 dated 29.10.1956 “Gond Gowari” was added. There
have been conscious addition by Scheduled Castes and Scheduled
Tribes Orders (Amendment) Act, 1956 and Scheduled Castes
and Scheduled Tribes Lists (Modification) Order, 1956 as “Gond
Gowari” it cannot be accepted that the Parliament included Tribe
which had become extinct before 1911. The High Court in
paragraph 68 of the judgment has itself referred to Report of
Research Officers dated 12.05.2006. On the basis of the decision
taken in respect Gowari community under the Chairmanship of
Hon’ble Chief Minister on 29.05.2005 Tribal Development
Department was entrusted to ascertain the facts. The Research
Officers on 12.05.2006 personally visited the areas in which
maximum population of Gowari caste and “Gond Gowari” caste
were found in different villages of District Gadchiroli. The High
Court itself has noticed that the Research Officers conducted
research and has also found Entry of “Gond Gowari” made on
01.07.1955. Thus, the Research Officers before 29.10.1956 found
“Gond Gowari” hence the above evidence which was relied by
the High
Court itself proved that “Gond Gowari” Tribe was in
existence and found personally by the Research Officers. The
conclusion of the High Court that Research Officers did not find
any Entry as “Gond Gowari” is factually incorrect and contrary to
what was found in paragraph 68.  [Paras 75-78][654-C-H; 655-E-
F; 656-A]
2.4 This Court has already noted the Government
Resolution dated 24.4.1985 issued by the Tribal Development
Department of the State, the difference between “Gond” and
“Gond Gowari”, the difference in the character and customs of
Scheduled Tribe community of “Gond Gowari” and community of
Gowari as extracted above. The Government Resolution was
issued after study by the State Government, the High Court
although has noticed above Resolution in paragraph 70 of the
judgment but has given no reason as to why differentiation in two
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Tribes is to be discarded. There is one more reason due to which
the conclusion of the High Court that Scheduled Tribe “Gond
Gowari” was extinct before 1911 has to be flawed. The reason is
that in Writ Petition No.4779 of 2008 filed by Advasis “Gond
Gowari” a prayer was made to quash the Scheduled Tribe
certificates to “Gond Gowari” granted to respondent Nos. 4 to
19. The High Court by passing order has called for certificates of
“Gond Gowari”. The High Court further in paragraph 83 after
perusing the records of the Committee found 39 claimants
produced the documents which are in the nature of entries in P-
I revenue record pertaining to the period 1922-1923. When
before the High Court Scheduled Tribe certificates of “Gond
Gowari” were filed in large number and there were documents
to support by the revenue entries some of which are prior to
1950 and which certificates were sought to be quashed in the
writ petition, the existence of Scheduled Tribe “Gond Gowari”
was very much found. The Caste Scrutiny Committee having
validated the said certificates it was not open for the High Court
to say that Scheduled Tribe “Gond Gowari” became extinct prior
to 1911. The host of the evidence which was before the High
Court including the Research Officers’ Report dated 12.05.2006
and Scheduled Tribe certificates of the candidates who were
“Gond Gowari” it was not open for the High Court to come to
the conclusion that Scheduled
Tribe “Gond Gowari” was extinct
prior to 1911. The High Court summoned all the certificates and
there was no finding that certificates were fake or persons who
were given certificates are non-existent. The High Court erred
in coming to the conclusion that “Gond Gowari” Tribe was extinct
prior to 1911. Even on the basis of materials which were brought
before the High Court no conclusion could have been drawn that
“Gond Gowari” Tribe was extinct prior to 1911. [Paras 79-81][656-
B-D, H; 657-A-D]
2.5 Thus, Question Nos.3 and 4 are answered in the following
manner:
ANSWER NO.3
The High Court could not have entered into the issue that
“Gond Gowari” which was Scheduled Tribe mentioned in
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Constitution (Scheduled Tribes) Order, 1950 as amended upto
1976 is no more in existence and became extinct before 1911.
ANSWER NO.4
The conclusion of the High Court in the impugned judgment
that “Gond Gowari” Tribe had been extinct before 1911 is not
supported by the materials which were on record before the High
Court. [Para 82][657-E-G]
3.1 QUESTION NO.5 & 6
The caste ‘Gowari’ and ‘Gond Gowari’ are two distinct and
separate castes. Russel and Hiralal have separately dealt with
‘Gowari’ and ‘Gond Gowari’ and have categorically stated that
‘Gond Gowari’ have been treated as distinct castes from ‘Gowari’.
The ‘Gowari’ which is another backward community have not been
included in the list of Scheduled Tribes in the book published by
Anthropological Survey of India, People of India, National Series
Volume III on “The Scheduled Tribes’. [Paras 83][657-H; 658-
A-B]
3.2 This Court has further noticed the Census of 1891 and
1901 which have been referred by the High Court. The population
of ‘Gowari’ has been shown separately from the population of
‘Gond Gowari’. The ratio of the Constitution Bench judgment of
this Court in Basavalingappa and Bhaiya lal as well as Milindhas
also been noticed. The High Court could not have undertaken
the enquiry to declare the caste which is not included in the
Scheduled Tribes Order, 1950 as a Scheduled Tribe. The High
Court could not have granted a declaration that the caste ‘Gowari’
is ‘Gond Gowari’ which is referred to in Item
28 of Entry 18 of
Constitutional Scheduled Tribes Order, 1950 amended as on date.
The High Court’s view that ‘Gond Gowari’ is not a sub-tribe of
‘Gond’, hence, its validity cannot be tested on the basis of the
affinity test specified in the Government Order dated 24.04.1985
is also not correct. The report of the first Backward Commission
(1955) by which recommendation was made to add ‘Gowari’ as a
sub-tribe of ‘Gond’ was on the basis of study and research by the
Backward Commission which cannot be brushed aside. This Court
has also noticed the authoritative books on Tribes in Central
India that ‘Gond Gowari’ is a sub-tribe of ‘Gond’. In the
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Government Resolution dated 29.04.1985 comparative chart was
annexed where general information regarding Scheduled Tribes
and non-Scheduled Tribes i.e. ‘Gond Gowari’ and ‘Gowari’ have
been given. The Government Resolution also mentioned that
‘Gond Gowari’ is also a small sub-tribe of ‘Gond’ tribe.
[Paras 86-88][859-B-F]
3.3 With the ‘Gowari’ word ‘Gond’ is prefixed. The
expression ‘Gond Gowari’ clearly expresses that the community
‘Gond Gowari’ has to do with tribe ‘Gond’. ‘Gond Gowari’ is a
community which has affinity with ‘Gond’ and is sub-tribe of
‘Gond’. The entry of ‘Gond Gowari’ in Scheduled Tribes Order
1950 was as a sub-tribe of ‘Gond’ which is clear from a report of
the Backward Classes Commission, 1955. When the inclusion of
the entry ‘Gond Gowari’ was as (sub-tribe of Gond), its affinity
with ‘Gond’ cannot be ignored on any basis. This Court entertains
its own doubts about the correctness of the ratio of judgment in
the State of Maharashtra versus Mana Adim Jamat Mandal with
regard to a group entry. As per Article 342(1), tribes or tribal
communities or parts or groups within tribes or tribal communities
shall for the purposes of the Constitution be deemed to be
Scheduled Tribes. There has to be some purposes for joining
number of tribes together in one entry, but in case with regard to
‘Gond Gowari’ the affinity is more than apparent with ‘Gond’ and
the judgment of this Court in State of Maharashtra
versus Mana
Adim Jamat Mandal (Supra) cannot be read as an authority to
hold that ‘Gond Gowari’ is not a sub-tribe of ‘Gond’ and no affinity
is required to be established with Gond by the tribe ‘Gond
Gowari’.  There is no infirmity in Government Resolution dated
24.04.2984 insofar as Scheduled Tribe ‘Gond Gowari’ is
concerned. [Paras 92, 94][661-B-D, F-H; 662-A]
3.4 ANSWER NO.5
The caste ‘Gowari’ is not the same as ‘Gond Gowari’. The
High Court could not have granted declaration of caste ‘Gowari’
as ‘Gond Gowari’.
ANSWER NO.6
The High Court is not correct in its view that ‘Gond Gowari’
shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950,
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is not a sub-tribe of ‘Gond’. The validity of caste certificate to
‘Gond Gowari’ has to be tested on the basis of affinity test as
specified in the Government Resolution dated 24.04.1985. In view
of the foregoing discussion, none of the reasons given by the
High Court in paragraph 74 of the judgment are sustainable to
hold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of
‘Gond Gowari’. The entire basis of the judgment of the High Court
that tribe ‘Gond Gowari’ was completely extinct before 1911
having been found to be flawed, the entire basis of judgment is
knocked out. [Paras 95, 96][662-B-E]
3.5 When the State has expressly after 1979 written to the
Government of India on 06.11.1981 that ‘Gowari’ community does
not fulfill the criteria of Scheduled Tribe and thereafter after 1984,
several studies were conducted by Tribal department in State of
Maharashtra including report dated 12.05.2006 which reaffirms
that ‘Gond Gowari’ and ‘Gowari’ are distinct community and
‘Gowari’ is not Scheduled Tribe, there was no error in taking
stand before the High Court in the writ petition that ‘Gowari’ are
not entitled for Scheduled Tribe Certificate. [Para 98][663-A-B]
4. In the ends of justice it is directed that the admission
taken and employment secured by the members of ‘Gowari’
community on the basis of Scheduled Tribe certificate granted to
them between 14.08.2018 till date shall not be affected by this
judgment and they shall be allowed to retain the
benefit of
Scheduled Tribe obtained by them. However, the above
Scheduled Tribe candidates shall not be entitled to any further
benefit as Scheduled Tribe except their initial admission in
different courses or employment at different places on the
strength of Scheduled Tribe certificate given to the ‘Gowari’
Community obtained between 14.08.2018 and this day. The High
Court erred in declaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled
Tribes referred to in item 28 in Entry 18.The impugned judgment
of the High Court dated 14.08.2018 is set aside and the writ
petitions dismissed. [Paras 101-103][664-B-D]
State of Maharashtra v. Milind and Ors. (2001) 1 SCC
4 : [2000] 5 Suppl. SCR 65; B. Basavalingappa v. D.
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
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Munichinnappa and Ors. AIR 1965 SC 1269 : [1965]
 SCR 316; Bhaiya Lal v. Harikishan Singh and Ors.
AIR 1965 SC 1557 : [1965]  SCR  877 – followed.
Srish Kumar Choudhury v. State of Tripura and Ors.
(1990) Suppl. SCC 220 : [1990] SCR 576; Palghat Jilla
Thandan Smudhaya Samrakshna Samithi and Anr. v.
State of Keralaand Anr. (1994) 1 SCC 359 : [1993]
3 Suppl. SCR 872; Kumari Madhuri Patil and Anr. v.
Addl. Commissioner, Tribal Development and Ors.
(1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; Nityanand
Sharma and Anr. v. State of Bihar and Ors. (1996) 3
SCC 576 : [1996] 2 SCR 1 – relied on.
State of Maharashtra v. Mana Adim Jamat Mandal
(2006) 4 SCC 98 : [2006] 2 SCR 1142 – held not
applicable.
Adivasi Gowari Samaj Sanghatan, Maharashtra and
Anr. v. Union of India and Ors.Decision dtd. 04.04.1996
of High Court of Bombay at Nagpr in Writ Petition
No.1691 of 1990 – referred to.
Tribes and Castes of the Central Provinces of India by
R. V. Russell and Rai Bahadur Hira Lal in which book
in Volume III – referred to.
Case Law Reference
[2000] 5 Suppl. SCR 65
followed
Para 12
[1965] SCR 316
followed
Para 21
[1965] SCR 877 
followed
Para 47
[1990] SCR 576 
relied on
Para 49
[1993] 3 Suppl. SCR 872 relied on
Para 51
[1994] 3 Suppl. SCR 50
relied on
Para 52
[1996] 2 SCR 1
relied on
Para 53
[2006] 2 SCR 1142
held not applicable
Para 89
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4096
of 2020.
From the Judgment and Order dated 14.08.2018 of the High Court
of Judicature at Bombay, Nagpur Bench in Writ Petition No. 1742 of
2007.
With
Civil Appeal No.4098-4100, 4097, 4101 of 2020.
Sanjay Jain, ASG, Shyam Divan, C.U. Singh, Mukul Rohatgi, Sr.
Advs., Siddheshwar N. Biradar, Vinayak Bhandari, Ms. Sakshi Ajit Kale,
Ravindra Keshavrao Adsure, Yash Prashant Sonavane, Jaiprakash
Babasaheb Chavan, Ms. Sangita Sagar Pahune Patil, Mohan Sudame,
Ms. Sangita Gupta, Amjid Maqbool, Manish Kumar Gupta, Mohammed
Akhil, Ms. Sansriti Pathak, Raj Bahadur, Amrish Kumar, Ram Parsodkar,
Shakul R. Ghatole, Siddharth Dharmadhikari, Ms. Jaikriti S. Jadeja,
Ms. Astha Sharma, Abhay Anturkar, Ms. Aagam Kaur, Abhikalp Pratap
Singh, Ms. Bansuri Swaraj, Siddhesh Kotwal, Divyansh Tiwari, Ms. Ana
Upadhyay, Nirnimesh Dube, Sachin Patil, Gagan Sanghi, Rameshwar
Prasad Goyal, Sudhanshu S. Choudhari, Kunal Cheema, Ms. Ruchita
Kunal Cheema, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. These appeals filed against the common judgment dated
14.08.2018 of Bombay High Court, Nagpur Bench raise the issues of
seminal importance pertaining to a Scheduled Tribe namely “Gond
Govari” in the State of Maharashtra included in the Constitution
(Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 as applicable in
the
State of Maharashtra.
3. The Bombay High Court vide judgment dated 14.08.2018 allowed
four writ petitions being Writ Petition No. 1742 of 2007, Writ Petition
No.4779 of 2008, Writ Petition No. 4032 of 2009 and Writ Petition
No.1680 of 2012.  We may notice in brief the claim of the writ petitioners
in the aforesaid writ petitions.
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR.
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Writ Petition No.1742 of 2007 -  Keshao Vishwanath Sunone
Vs. State of Maharashtra and Ors.
4. Keshao Vishwanath Sunone (hereinafter referred to as
“Sunone”) claimed himself to belong to Gowari caste. The petitioner’s
claim in the writ petition is that Sunone belong to Gowari caste, which
comes under the Scheduled Tribes as there is no Gond Govari caste in
existence. Sunone was appointed as Technical Assistant on 29.08.1983.
The caste certificate of Gond Govari Scheduled Tribe was issued to
Sunone on 03.07.1986. The caste certificate of Sunone was sent for
verification of caste. The Caste Scrutiny Committee vide its order dated
13.01.2007 invalidated the caste certificate of Sunone. Challenging the
order of Caste Scrutiny Committee dated 13.01.2007, writ petition was
filed with following prayers:-
“a) issue appropriate writ, order or directions thereby quash and
set aside an order passed by the Scheduled Tribe Certificate
Scrutiny Committee, Amravati Division, Amravati dated
13.1.2007;
b)
stay and effect and operation of the impugned order dated
13.1.2007 passed by the Scheduled Tribe Certificate Scrutiny
Committee, Amravati Division, Amravati during the pendency
of this petition and to protect the services of the petitioners;
c)
grant any other relief as this Hon’ble Court deems fit and
proper in the facts and circumstances of the case.”
Writ Petition No.4779 of 2008 - Adivasi Gond Govari
(Gowari) Sewa Mandal
through its President Vs. State of
Maharashtra and Ors.
5. The writ petitioner claimed to be an association working for the
welfare of people belonging to Gond Govari community. The petitioner
association had filed a writ petition questing the caste validity certificate
issued to respondent Nos.4 to 19 as Scheduled Tribe (Gond Govari).
Petitioners’ case was that without conducting an enquiry, the caste validity
certificate was issued. The petitioners’ case further was that the validity
certificate issued as Gond Govari Scheduled Tribe was wrongly issued
since the respondents belonged to Gowari community and they did not
belong to Gond Govari community.
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6. In the writ petition, the petitioner has prayed for quashing the
caste validity certificates issued to respondent Nos.4 to 19. A further
direction was sought that Caste Scrutiny Committee, Nagpur not to issue
caste validity certificate pertaining to Gond Govari Scheduled Tribe and
the detailed inquiries be conducted. It was further prayed that
Commissioner, Tribal Research and Training Institute, Pune and Caste
Scrutiny Committee Nagpur be directed to conduct full place enquiry in
the relation to Gowari and Gond Govari entries.
Writ Petition No.4032 of 2009 - Adim Gowari Samaj Vikas
Mandal and Ors. Vs. State of Maharashtra and Anr.
7. The petitioner association registered in 2004 claimed to be
working in the field of betterment and welfare of members of people
belonging to Gowari community. In the writ petition, reference was made
to the Government Resolution dated 24.04.1985, whereby the Government
issued guidelines for taking precautionary measures while issuing the
tribe certificate. Alongwith the Government Resolution, a chart was issued
containing a comparative study, which relate to members of actual
Scheduled Tribes and other castes having similar nomenclature. The
writ petition contains a detailed reference to a subsequent Government
Resolution dated 15.06.1995 where under the Government Resolution
of the State of Maharashtra, Gowari was treated to be other backward
community, special backward class with 2% reservation. In the writ
petition,
validity of the Government Resolution dated 24.06.1985
prescribing the guidelines by way of affinity test to claim the Gowari
community was challenged.
Writ Petition No.1680 of 2012 - Adiwasi Gond Govari
(Gowari) Seva Mandal Vs. Union of India & Ors.
8. By notification dated 16.06.2011 issued by the Government of
India, Gowari community was included in the other backward class
category from common Central List in respect of State of Maharashtra.
The writ petitioner claimed that Gowari community and its members
have been included in Entry No.18 of the Scheduled Tribes order in
relation to State of Maharashtra. The direction was sought to instruct
the Sub-Divisional Magistrate to issue the caste certificates to the persons
belonging to Gowari community as Scheduled Tribes. The writ petitioner
has also challenged the Government Resolutions dated 24.04.1985,
13.06.1995 and 15.06.1995.  In the writ petition, following prayers were
made:-
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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“(a) issue appropriate writ, order or direction in the nature of
mandamus thereby quash and set aside impugned Gazette
Notification dated 16.06.2011 (Annexure No.9) issued by
Government of India as unconstitutional as regards Gowari
community and further delete the entry of Gowari community
from the common central list of OBC category in respect of
State of Maharashtra;
(b) by issuance of appropriate writ, order or direction remove
the anamoly from the Entry 18 of Para 19 of the Scheduled
Castes and Scheduled Tribes Order, 1976 as regards Gond
Gowari community;
(c) by issuance of appropriate writ, order or direction declare
that the Gowari community and its members have been
included in the Entry 18 of Para 19 of Scheduled Castes and
Scheduled Tribes Order, 1976;
(d) by issuance of appropriate writ, order or direction in the nature
mandamus direct the State Government and instruct Sub
Divisional Offices, Magistrates throughout the State to issue
caste certificates to the people belonging to Gowari
community being Scheduled Tribe category people and further
direct Cast Scrutiny Committee to issue validity certificates
to Gowari Community people being Scheduled Tribe;
(e) issue appropriate writ, order or direction in the nature of
mandamus, thereby quash and set aside the Govt. Resolution,
dt.24.4.1985, 13.6.1995, & 15.6.1995 being illegal, at
Annexure Nos.10, 11 &. 12;
(f)
grant any other relief which may be deemed
fit and proper in
the facts and circumstances of the case.”
9. The Division Bench vide its impugned judgment dated
14.08.2018 allowed the writ petitions by following order:-
“ORDER
(1) We hold and declare that the tribe Gond Gowari was completely
extinct before 1911 and no trace of it was found either in the
Maratha Country of C.P. and Berar or in the State of Madhya
Pradesh prior to 1956.
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(2) We hold and declare that there did not exist any tribe as Gond
Gowari as on 29-10-1956, i.e. the date of its inclusion as 28th Item
in Entry No. 18 of the Constitution (Scheduled Tribes) Order, 1950
in relation to the State of Maharashtra and it was Gowari
community alone shown as Gond Gowari, therein.
(3) The tribe Gond Gowari shown as 28th Item in Entry No. 18 of
the said Order is not a sub-tribe of Gond and, therefore, the claim
for its validity cannot be tested on the basis of the guidelines in
respect of affinity test specified in the Government Resolution
dated 24-4-1985.
(4) The people belonging to Gowari community in the State of
Maharashtra cannot be denied the benefits of the Scheduled Tribes,
merely because the Gowari community is shown in the list of
Special Backward Classes in relation to the State of Maharashtra
in the Government Resolutions dated 13-6-1995 and 15-6-1995
and as Other Backward Class category in the Gazette Notification
dated 16-6-2011 issued by the Government of India in the common
Central list in respect of the State of Maharashtra.
(5) The order dated 13-1-2007 passed by the Scheduled Tribes
Certificate Scrutiny Committee at Amravati, invalidating the claim
of the petitioner-Keshao s/o Vishwanath Sonone in Writ Petition
No. 1742 of 2007, is hereby quashed and set aside. The said matter
is remanded back to the Scrutiny Committee to decide it afresh in
the light of the decision of this Court.
(6) We direct the Registry of
this Court to get the entire old record
of Census Reports, Parliamentary Debate, Gazetteers, etc., called
for the purposes of these petitions from the Library, scanned, within
a period of six weeks, as it has worn out. The record is very
important and it needs to be preserved, as it is also not available
on the ‘Net’.”
10. Aggrieved by judgment of the Division Bench, the State of
Maharashtra has filed Civil Appeals arising out of SLP (C) No.15044 of
2020 and SLP (C) Nos. 15045-15047 of 2020. Union of India has also
filed Civil Appeal arising out of Diary No.17886 of 2020 as well as one
Zanaklal Bhaisaku Mangar, who was respondent No.15 in Writ Petition
No.4779 of 2008 filed by Adivasi Gond Govari (Gowari) Sewa Mandal
has filed SLP (C) No.7901 of 2019 in this Court.
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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11. We have heard Shri Shyam Divan, learned senior counsel,
Shri Ravindra Keshavrao Adsure, learned counsel for the appellant, State
of Maharashtra. Shri Sanjay Jain, learned Additional Solicitor General
for the appellant, Union of India and Shri C.U. Singh, learned senior
counsel for the appellnt-Zanaklal Bhaisaku Mangar. Shri Mukul Rohatgi,
learned senior counsel has appeared for the respondents. We have also
heard Ms. Bansuri Swaraj, learned counsel for the respondents and other
learned counsel.
12. Shri Shyam Divan, learned senior counsel submits that the
High Court committed error in tinkering with the Entries under the
Constitution (Scheduled Tribes) Order, 1950 which could only be done
by a Parliamentary Act as per constitutional provision of Article 342
sub-clause (2). A detailed procedure is to be followed to amend
Constitution (Scheduled Tribes) Order, 1950 which could not have been
done by the High Court as has been done in the impugned judgment. It is
submitted that Constitution Bench in State of Maharashtra Vs. Milind
and Ors., (2001) 1 SCC 4 has held that Entries in Constitution
(Scheduled Tribes) Order, 1950 can only be amended by an Act of
Parliament under Article 342(2) and State Governments or Courts or
other Authorities or Tribunals cannot hold inquiry so as to see whether
any caste should be considered as included in Constitution (Scheduled
Tribes) Order, 1950, where it is not specifically
mentioned in the same.
13. Shri Divan submits that Scheduled Tribe, namely, ‘Gond
Gowari’ which is included in Entry 18 of Part-IX of Constitution
(Scheduled Tribes) Order, 1950 do exist and is clearly different from
caste ‘Gowari’. The High Court was in error in holding that Tribe ‘Gond
Gowari’ is an extinct Tribe which is not in existence after 1911. The
Entry ‘Gond Gowari’ being maintained in Constitution (Scheduled Tribes)
Order, 1950 and was not deleted even after several Parliamentary Acts
were passed to amend the Constitution (Scheduled Tribes) Order, 1950.
The High Court clearly erred in holding that Scheduled Tribe ‘Gond
Gowari’ is not in existence when the caste was included in Constitution
(Scheduled Tribes) Order, 1950.
14. Shri Divan submits that Anthropological Expert Report which
was on record before the High Court also clearly stated that ‘Gond
Gowari’ is a Scheduled Tribe which is different with ‘Gowari’. The caste
‘Gowari’ has close affinity with ‘Yadav’ and ‘Ahir’ whereas ‘Gond
Gowari’ has affinity with ‘Gond’. Both are different in its culture and
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customs. Shri Divan has also placed reliance on the report submitted by
the Tata Institute of Social Sciences, Mumbai dated 29.12.2020 on “Socio-
Anthropological Study of Gowari Community of Maharashtra”. He
submits that in the report after considering all aspects including field
visits by research team at different places had found two communities,
i.e., ‘Gond Gowari’ and ‘Gowari’ different in customs, worship and
settlement. The report submits that ‘Gond Gowari’ is sub-Tribe of ‘Gond’
whereas ‘Gowari’ are cattle graziers. It is submitted that there have
been several attempts by ‘Gowari’ to obtain status of Scheduled Tribes
by including them within the List of Scheduled Tribes through
Parliamentary enactment and ‘Gowaris’ having failed in all their attempts,
have filed the writ petitions for seeking declaration which could not have
been granted by a Court of law. The High Court entered into the evidence
to come to the finding that the Tribe ‘Gond Gowari’ was completely
extinct before 1911 which exercise could not have been undertaken in
writ petitions. There are other materials on records which clearly proved
the presence of ‘Gond Gowari’ before and after 1956 and even as on
date and the High Court committed error in holding that the Tribe ‘Gond
Gowari’ was completely extinct before 1911.
15. It is submitted that ‘Gowari’ has already been declared as
Special Backward Class by the State Government by Resolutions dated
13.06.1995 and 15.06.1995 and also
included in the category of other
Backward Classes by Government of India notification dated 16.06.2011.
The benefit of Resolution has already been availed by ‘Gowari’ and the
fact that they have been recognised as Special Backward Class and
other Backward Class category by the State of Maharashtra and
Government of India respectively is indicative of fact that they are not
Scheduled Tribes but are belonging to other Backward Class.
16. Shri Shyam Divan has also relied on the Division Bench
judgment of the High Court of Bombay at Nagpur dated 04.04.1996
delivered in Writ Petition No.1691 of 1990 - Adivasi Gowari Samaj
Sanghatan, Maharashtra and Anr. Vs. Union of India and Ors.,
where a writ petitioner claiming Scheduled Caste status by ‘Gowari’
community was rejected by the Division Bench approving the action of
authority in examining the affinity of the writ petitioner with the main
Tribe ‘Gond’. Shri Divan submits that there being a Division Bench
judgment rejecting the claim of Gowari which was a judgment of co-
ordinate Bench, the High Court in the impugned judgment could not
have taken a contrary view.
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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17. Shri Sanjay Jain, learned Additional Solicitor General in support
of the appeal filed by the Union of India contends that the High Court
failed to appreciate that list of Scheduled Tribes in relation to a State
which is notified by the order of the President after consultation with the
State can be modified only through an Act by the Parliament in
consultation with the State Government. The High Court in the impugned
judgment has substituted its own opinion in place of the opinion of the
Parliament which is not permissible in law.
18. Shri C.U. Singh, learned senior counsel for the appellant submits
that the High Court committed an error in holding that ‘Gond Gowari’
are extinct. It is submitted that the High Court has ignored the
Parliamentary Committee’s proceedings and studies on the subject. Shri
C.U. Singh specifically referring to the Statement of Objects and Reasons
to the “The Scheduled Castes and Scheduled Tribes Orders
(Amendment) Bill, 1976” submits that only those communities were
excluded who were not found in a State in the return of Census of 1961
and 1971. He submits that the fact that ‘Gond Gowari’ was retained and
was not excluded by the Amendment Act, 1976 clearly points out that
the Parliament was satisfied with the existence of ‘Gond Gowari’. Shri
Singh also referring to Article 338A of the Constitution which has been
inserted by the Constitution (Eighty-Ninth Amendment) Act, 2003 submits
that National Commission for the Scheduled Tribes having been
constituted which is empowered to investigate and monitor all matters
relating to the safeguards provided for the Scheduled Tribes, without
reference to National Commission for the Scheduled Tribes, it was not
open for the writ petitioners to file a writ petition for claiming the status
of Scheduled Tribes.Shri C.U. Singh further, submits that in the writ
petition filed before the High Court there was no specific plea that Gond
Gowari was extinct.
19. Shri Ravindra Keshavrao Adsure, learned counsel adopting
the submissions of Shri Shyam Divan submits that ‘Gowari’ had made
several attempts to obtain the benefits of Scheduled Tribes and they
having failed in all their attempts have filed the writ petitions to obtain a
declaration from the Court of Law regarding their status as Scheduled
Tribes which is not permissible in law.
20. Shri Mukul Rohatgi, learned senior counsel appearing for the
respondents supporting the judgment of the High Court contends that it
was open for the High Court to find out the true meaning and contents
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of Entry ‘Gond Gowari’ as included in the Constitution (Scheduled Tribes)
Order, 1950. He submits that insofar as Government Resolutions declaring
the ‘Gowari’ as Special Backward Class and other Backward Class,
the said Resolutions and notifications were challenged by the writ
petitioners in their writ petitions. They never wanted the benefit of Special
Backward Class or other Backward Class. The High Court has rightly
restored the benefit of Scheduled Tribes ‘Gowari’ to which they were
entitled in law. Shri Rohatgi submits that the High Court did not commit
error in entering into an issue and returning a finding that ‘Gond Gowari’
was extinct before 1911. When ‘Gond Gowari’ was extinct before 1911
it was the ‘Gowari’ who were entitled to be treated as Scheduled Tribes
in the Entry 18. It was fully permissible for the High Court to find out as
to whether any Tribe named ‘Gond Gowari’ is in existence or not and
who are the true ‘Gond Gowari’ entitled for the benefit of the Scheduled
Tribes.
21. Shri Rohatgi submits that ‘Gond Gowari’ was a small hybrid
caste by alliance of Gond and Gowari, in 1911 Gond Gowari were
completely amalgamated with the Tribe Gowari. It is submitted that in
fact there is no Tribe of “Gond Gowari” and it is in fact Gowari which
was included in the Constitution (Scheduled Tribes) Order, 1950. He
submits that for Gowari to recognise as Scheduled Tribes there is no
necessity of showing any affinity with Gond. He submits that by the
Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, the
word including “Gond Gowari” as occurring in Entry 12 was substituted
by Entry 18 by deleting word Gond which clearly means that all Tribes
mentioned in the Entry 18 are independent Tribes with having no affinity
with Gond. He submits that the State of Maharashtra right from 1967
has been taking the stand that Gowari be included as separate category
of Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950,
the State cannot suddenly take a U-turn and start denying the claim of
Gowari to be Scheduled Tribe. Shri Rohatgi submits that the High Court
has referred to a host of materials considered in the judgment for coming
to the conclusion that Tribe Gond Gowari became extinct prior to 1911.
The exercise undertaken by the High Court is in consonance with the
law laid down by the Constitution Bench in B. Basavalingappa Vs.
D. Munichinnappa and Ors., AIR 1965 SC 1269. He submits that
before the High Court it does not make any difference whether the
claim that Gond Gowari were extinct before 1911 was admitted or
disputed, even it is disputed, the High Court had to find out truth to clear
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
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the confusion after looking into the evidence on record. He submits that
the High Court has referred to the Census Reports and has rightly found
out that after 1911 in subsequent Censuses held that it was only Gowari
who were found present. Gond Gowari being surplusage the claim was
raised for substitution of Gond Gowari with Gowari. It is submitted that
it is the Gowari who were found present in Census after 1911 and it
were Gowari who were entitled to be treated as Scheduled Tribes and
Gowari being not a sub-caste of Gond they were not required to prove
any affinity with Gond and the Resolution dated 24.04.1985 of the State
of Maharashtra requiring affinity to be proved was not in accordance
with law. Shri Rohatgi submits that it is actually Gowari who have been
given certificate of Scheduled Tribes. He submits that there are no
competitive claims of Gond Gowari, there being no Tribe of Gond Gowari
in existence as of now.
22. Shri Rohatgi further submits that ratio of Constitution Bench
in State of Maharashtra Vs. Milind and Ors. is not in accord with the
ratio of earlier Constitution Bench in B. Basavlingappa. There being
conflict between the ratio of two Constitution Benches, the matter needs
to be referred to a larger Constitution Bench for resolving the conflict.
Shri Rohatgi lastly submits that after the judgment of Division Bench
dated 14.08.2018, Scheduled Tribes’ certificates were issued on the basis
of
which admissions/employment have been undertaken by members of
Gowari community which benefit needs to be protected by this Court.
23. Ms. Bansuri Swaraj, appearing for the respondents submits
that Gond Gowari community was short-lived and it got extinct completely
prior to the Census of 1911. There did not exist any Tribe named ‘Gond
Gowari’ as on 29.10.1956, i.e., the date of its inclusion in Entry No.18 of
the Constitution (Scheduled Tribes) Order, 1950. It is submitted that
Gowari community alone which was shown as ‘Gond Gowari’.
Reliance has also been placed on book titled “Castes and Tribes of the
Central Provinces of India” by Russell and Hira Lal. It is submitted that
first Backward Classes Commission under the Chairmanship of
Kakasaheb Kalelkar had recommended Gowari under the Sub-group/
Sub-tribes ‘Gond’ group, which was to be added with Gond, but by
some mistake instead of Gowari, Gond Gowari was included in the
Entry in the Scheduled Castes and Scheduled Tribes Lists
(Amendment) Bill, 1956. Although amendment was supposed to be
made as Gowari to be added with Gond but was erroneously made as
Gond Gowari. It is submitted that in the year 1965, the Chief Minister of
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Maharashtra had discussed with the Advisory Committee and it was
recommended that the Gowari Tribe be added as a separate Tribe by
deleting the Entry of Gond Gowari. The State of Maharashtra having
taken a stand that Gowari be included as separate Entry in the Scheduled
Tribes, there is a legitimate expectation in the Gowari community. After
the judgment of the High Court, the Revenue Minister of the State has
made a statement that High Court judgment shall be implemented which
stand has subsequently been changed.
24. Learned counsel for the parties have placed reliance on the
various judgments of this Court which shall be referred to while
considering the submissions in detail.
25. Before we enter into the respective submissions of learned
counsel for the parties, it is relevant to notice the relevant constitutional
provisions as well as the Constitution (Scheduled Tribes) Order, 1950
amended from time to time and other relevant statutory provisions.
26. Part XVI of the Constitution deals with “Special Provisions
relating to certain classes”. Article 342 of the Constitution deals with
Scheduled Tribes, which is to the following effect:-
“342. Scheduled Tribes—(1) The President may with respect
to any State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups within
tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to that
State or Union territory, as the case may be
(2) Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under clause
(1) any tribe or tribal community or part of or group within any
tribe or tribal community, but save as aforesaid a notification issued
under the said clause shall not be varied by any subsequent
notification.”
27. Article 366(25) defines Scheduled Tribes in following words:-
“366. Definitions.— In this Constitution, unless the context
otherwise requires, the following expressions have the meanings
hereby respectively assigned to them, that is to say—
XXXXXXXXXXXXX
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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(25) ”Scheduled Tribes” means such tribes or tribal communities
or parts of or groups within such tribes or tribal communities as
are deemed under Article 342 to be Scheduled Tribes for the
purposes of this Constitution;
XXXXXXXXXXXXXXXX”
28. In exercise of power under Article 342, the President had
issued the Constitution (Scheduled Tribes) Order, 1950 dated 06.09.1950.
Paragraphs 2 and 3 of the Order states:-
“2. The tribes or tribal communities, or parts of, or groups
within, tribes or tribal communities, specified in Parts I to XIV of
the Schedule to this Order shall, in relation to the States 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
Schedule.
3. Any reference in the Schedule to this Order to a district
or other territorial division of a State shall be construed as a
reference to that district or other territorial division as existing on
the 26th January, 1950.”
29. The Schedule contains details of Scheduled Tribes with
reference to different States. Part III to the Schedule deals with the
State of Bombay and Entry No.9 of Part III mentioned “9. Gond”. Part
IV dealt with Madhya Pradesh where also Entry No.12 mentions “Gond
[including Madia (Maria) and Mudia (Muria)]”. The Parliament passed
an Act namely, The Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1956 to provide for the inclusion in, and the exclusion
from the lists of Scheduled Castes and Scheduled Tribes, of certain castes
and tribes and matters connected therewith. AS per Section 4 of the
Act, 1956, Constitution (Scheduled Tribes) Order, 1950 was amended in
the manner and to the extent as specified in Schedule III. In Schedule
III, Entry No.9 was substituted by following Entry:-
“9. Gond or Rajgond.”
30. Part IV which deals with Madhya Pradesh, Entry 12 was
substituted by following entry:-
“12 Gond, including-

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Arakh or Arrakh
Agaria
Asur
Badi Maria or Bada Maria
Bhatola
Bhimma
Bhuta, Koilabhuta or Koilabhuti
Bhar
Bisonhorn Maria
Chota Maria
Dandami Maria
Dhuru or Dhurwa
Dhoba
Dhulia
Dorla
Gaiki
Gatta or Gatti
Gaita
Gond Gowari
Hill Maria
Kandra
Kalanga
Khatola
Koitar
Koya
Khirwar or Khirwara
Kucha Maria
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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Kuchaki Maria
Madia (Maria)
Mana
Mannewer
Moghya or Mogia or Manghya
Mudia (Muria)
Nagarchi
Nagwanshi
Ojha
Raj
Sonjhari Jhareka
Thatia or Thotya
Wade Maria or Vade Maria” 
31. It is to be noticed that amendment to the Scheduled Tribes
with respect to Madhya Pradesh was consequent to recommendations
by the report of the Backward Classes Commission also known as
Kalelkar Commission. With regard to Madhya Pradesh with regard to
list of Scheduled Tribes published in Constitution (Scheduled Tribes)
Order, 1950 together with the revision suggested by the Backward Classes
Commission is included in volume II of the Report. Entry No.12 in the
List of the Scheduled Tribes was with respect to Gond [including Madia
(Maria) and Mudia (Muria)]. Backward Classes Commission suggested
addition of several sub-tribes of Gond with Gond. Column No.VI of the
Table contains heading “Commission’s recommendation for inclusion”.
Item No.10 in Column No.6 is to the following effect:-
“10. Sub-Tribes of Gond : (to be added with Gond) Arakh or Arrakh
Agaria
Asur
Bhatola
Bhimma
Bhuta or Keliabhuta or Koilabhuti
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Bhar
Dhuru or Dhurwa
Dhoba
Dhulia
Gatta or Gatti
Gaita
Gaiki
Ganda or Gandi
Gowari
Kalanga
Khatola
Koitar
Koya
Khirwar or Khirwara
Moghya or Mogia or Monghya
Nagarchi
Ojha
Thatia or Thotya
Raj
Nagwanshi
Mannewar
Dorla
Mana
Kandra
Bison horn Miria
Hill Maria
Badi Maria or Bada Maria, Chota Maria,
Dandami Maria
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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Kuchaki Maria
Kucha Maria
Wade Maria or Vade Maria” 
32. The States Reorganisation Act, 1956 was enacted by
Parliament to provide for the reorganisation of the States of India and
for matters connected therewith. Section 8 provided for formation of a
new Bombay State. By virtue of Section 8(1)(c) following districts, which
then existed in the State of Madhya Pradesh were included in the new
Bombay State, which is to the following effect:-
“8. Formation of a new Bombay State. – (1) As from the
appointed day, there shall be formed a new State to be known as
the State of Bombay comprising the following territories, namely:–
XXXXXXXXXXXX
(c) Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara
and Chanda districts in the existing State of Madhya Pradesh;
XXXXXXXXXXXX”
33. The above districts were earlier part of the State of Madhya
Pradesh. Section 41 of the States Reorganisation Act provide for
modification of the Scheduled Castes and Scheduled Tribes Orders with
regard to territorial changes and formation of new States under the
provisions of Part II. In exercise of power under Section 41 of the States
Reorganisation Act, Scheduled Castes and Scheduled Tribes Lists
modification under Order 1950 was issued dated 29.10.1956. Part IV of
the Schedule dealt with Bombay. Schedule III contains the modification
to the Constitution (Scheduled Tribes) Order, 1950. Part IV of the
Schedule dealt with Bombay. Although, Entry
No. 9 continued as Gond
or Rajgond but with regard to certain Tehsils of Districts Amrawati,
Chanda and Yeotmal, Entry No.12 alongwith Entry of Gond following
was included:-
“7. In (1) Melghat tahsil of the Amravati District,
(2) Gadchiroli and Sironcha tahsils of the Chanda District,
(3) Kelapur, Wani and Yeotmal tahsils of the Yeotmal
District:-
XXXXXXXXXXXX

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12. Gond, including:-
Arakh or Arrakh
Agaria
Asur
Badi Maria or Bada Maria
Bhatola
Bhimma
Bhuta, Koilabhuta or
Koilabhuti
Bhar
Bisonhorn Maria
Chota Maria
Dandami Maria
Dhuru or Dhurwa
Dhoba
Dhu1ia
Dorla
Gaiki
Gatta or Gatti
Gaita
Gond Gowari
Hill Maria
Kandra
Kalanga
Khatola
Koitar
Koya”
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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34. We, thus, notice that after recommendation of Backward
Classes Commission for the State of Madhya Pradesh by virtue of Act,
1956, with the tribe “Gond” “Gond Govari” was added as the Scheduled
Tribes by modification order dated 29.10.1956. With respect to State of
Bombay in specific areas, with regard to entry of Gond as Scheduled
Tribe, several sub-tribes including “Gond Govari” was added as noticed
above.
35. The Parliament enacted the Scheduled Castes and Scheduled
Tribes Orders (Amendment) Act, 1976 (Act No.108 of 1976) to provide
for the inclusion in, and the exclusion from the list of Scheduled Castes
and Scheduled Tribes, of certain castes and tribes, for the re-adjustment
of representation of parliamentary and assembly constituencies in so far
as such re-adjustment is necessitated by such inclusion or exclusion and
for matters connected therewith. The Statements of Objects and Reasons
of the Bill is relevant, which is to the following effect:-
“STATEMENT OF OBJECTS AND REASONS
Under the Scheduled Castes and Scheduled Tribes Orders
some communities have been specified as Scheduled Castes or
as Scheduled Tribes only in certain areas of the State concerned
and not in respect of the whole State. This has been causing
difficulties to members of these communities in the areas where
they have not been so specified. The present Bill generally seeks
to remove these area restrictions. However, in cases where
continuance of such restrictions were specifically recommended
by the Joint Committee on the Scheduled Castes and Scheduled
Tribes Orders (Amendment) Bill, 1967, no change is being
effected. The Committee had also recommended exclusion of
certain communities from the lists of Scheduled Castes and
Scheduled Tribes. These exclusions are not being made at present
and such communities are being retained in the lists with the present
area restrictions. Such of the communities in respect of which the
Joint Committee had recommended exclusion on the ground that
they were not found in a State are, however, being excluded if
there were no returns in respect of these communities in the
censuses of 1961 and 1971.
2. The proposed amendments in the lists of Scheduled
Castes and Scheduled Tribes may lead to an increase in the
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population of these Castes and Tribes and consequently in the
number of reserved seats in the Lok Sabha and certain State
Legislative Assemblies. Provisions have therefore been made in
the Bill to empower the census authority to re-estimate the
population of the Scheduled Castes and the Scheduled Tribes and
the Election Commission to reallocate the reserved constituencies.”
36. The second Schedule of the Act, 1976 provides for substitution
in Constitution (Scheduled Tribes) Order, 1950 as indicated therein. With
regard to State of Maharashtra, which was formed, Part IX of the Second
Schedule, Entry No.18 deals with Scheduled Tribe “Gond”, which is to
the following effect:-
“18. Gond Rajgond, Arakh, Arrakh, Agaria, Asur, Badi Maria, Bada
Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Koilabhuti, Bhar,
Bisonhorn Maria. Chota Maria, Dandami Maria, Dhuru, Dhurwa,
Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita, Gond Gowari,
Hill Maria, Kandra, Kalanga, Khatala, Koitar, Koya, Khirwar,
Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana,
Mannewar, Moghya, Mogia, Monghya, Mudia, Muria, Nagarchi,
Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia, Thotya,
Wade Maria, Vade Maria”
37. Subsequent to above, the Parliament passed the Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act, 2002, the
preamble of which is to the following effect:-
“An Act to provide for the inclusion in the lists of Scheduled Tribes,
of certain tribes or tribal communities
or parts of or groups within
tribes or tribal communities, equivalent names or synonyms of
such tribes or communities, removal of area restrictions and
bifurcation and clubbing of entries; imposition of area restriction
in respect of certain castes in the lists of Scheduled Castes, and
the exclusion of certain castes and tribes from the lists of Scheduled
Castes and Scheduled Tribes, in relation to the States of Andhra
Pradesh, Arunachal Pradesh, Assam, Bihar, Goa, Gujarat,
Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya
Pradesh, Maharashtra, Manipur, Mizoram, Orissa, Sikkim, Tamil
Nadu, Tripura, Uttar Pradesh and West Bengal.”
38. The only amendment which was made with respect to
Schedule pertaining to Maharashtra in Entry 18 was to the following
effect:-
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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“(i)  in Part IX – Maharashtra—
(i) omit entry 12;
(ii) in entry 18 for “Gond Rajgond” substitute “Gond, Rajgond”;
(iii) omit entry 45;”
39. The above amendment in the Scheduled Castes order indicate
the care which was taken by the legislature in describing the Scheduled
Tribes entries. By the above amendment in earlier Entry No.18 of “Gond
Rajgond”, substitution was made by which now it is read as “Gond,
Rajgond”.
40. From the submissions of learned Counsel for the parties and
materials on record, following questions arise for consideration: -
1)
Whether the High Court in the writ petition giving rise to
these appeals could have entertained the claim of the caste
“Gowari”, which is not included as Scheduled Tribe in the
Constitution (Scheduled Tribes) Order, 1950, that it be
declared a Scheduled Tribe as “Gond Govari” which is
included at Item No.18 of Constitution (Scheduled Tribes)
Order, 1950 applicable in the State of Maharashtra and
further to take evidence to adjudicate such claim?
2)
Whether the ratio of the judgment of the Constitution
Bench of this Court in B. Basavalingappa Vs. D.
Munichinnappa, AIR 1965 SC 1269 permits the High
Court to take evidence to find out whether ‘Gowari’ are
‘Gond Gowari’ and is there any conflict in ratio of judgment
of Constitution Bench in B. Basavalingappa and
subsequent Constitution Bench judgment of this Court in
State of Maharashtra Vs. Milind, (2001) 1 SCC 4?
3)
Whether
the High Court could have entered into the
adjudication of the issue that ‘Gond Gowari’ which is a
Scheduled Tribe mentioned in Scheduled Tribes Order,
1950, as amended up to date is no more in existence and
was extinct before 1911?
4)
Whether the conclusion of the High Court in the impugned
judgment that ‘Gond Gowari’ Tribe was extinct before 1911
is supported on the materials which were on record before
the High Court?
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5)
Whether caste ‘Gowari’ is same as ‘Gond Gowari’ included
at Item No.28, Entry 18 of the Constitution (Scheduled
Tribes) Order, 1950 and the High Court could have granted
declaration to caste ‘Gowari’ as ‘Gond Gowari’ entitled for
Scheduled Tribe certificate?
6)
Whether the High Court is correct in its view that ‘Gond
Gowari’ shown as Item No.28 in Entry 18 of the
Constitution (Scheduled Tribes) Order, 1950 is not a
sub-tribe of Gond, hence, its validity cannot be tested on
the basis of affinity test specified in Government Resolution
dated 24.04.1985?
Question Nos. 1 and 2
41. The Constitution of India contains ample provisions for
fulfilment of the Constitutional aspirations of social justice to the
Scheduled Castes and Scheduled Tribes and to socially and educationally
backward classes of citizens. Articles 341 and 342 and Part XIV of the
Constitution contains several provisions as special provisions relating to
certain classes. Article 342 of the Constitution envisages public notification
specifying the tribes or tribal communities or parts of or groups within
tribes or tribal communities which shall be for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to a State
after consultation with Governor thereof. Sub-clause (2) contains another
important provision which provides that any inclusion or exclusion from
the list of Scheduled Tribes specified in a notification issued under clause
(1) of Article 342 can be done only
by Parliament by law. Sub-clause (2)
of Article 342, thus, contains a provision conferring authority only to the
Parliament to include and exclude a Scheduled Tribe in the list as specified
in the sub-clause (1) of Article 342. There has been a series of judgments
of this Court including Constitution Benches on Articles 341 and 342 as
well as entries in Scheduled Castes and Scheduled Tribes Order, 1950.
This Court had occasion to consider as to what extent the Courts including
the High court and this Court could interpret the entries in Scheduled
Castes and Scheduled Tribes Orders. The High Court has heavily relied
on Constitution Bench judgment of this Court in B.Basavalingappa
Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269.
42. We may first notice the above judgment.  An Election Petition
was filed challenging the election of respondent No.1 on the ground that
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]
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respondent No.1 not being member of any Scheduled Castes mentioned
in Constitution (Scheduled Castes) Order, 1950 could not have contested
the election from Scheduled Caste Constituency.  The respondent claimed
that he belongs to a Scheduled Caste listed as Bhovi in the Order. the
appellant’s case was that respondent No.1 was a Voddar by caste, which
was not a Scheduled Caste. The Election Tribunal held that the caste
mentioned as Bhovi in the Scheduled Castes Order was a sub-caste
amongst the Voddars and the entire Voddar caste not being included as
Scheduled Caste, the respondent No.1 was ineligible. The election was
set aside. On appeal, High Court held that Voddars caste as such was
not included in the Order, but considering the facts and circumstances in
existence at the time when the Order was passed in 1950, the Bhovi
caste mentioned therein was no other than Voddar caste. The High Court
allowed the appeal, against which judgment, appeal was filed in this
Court. The Constitution Bench of this Court speaking through Wanchoo,
J. held that it is not open to make any modification in the Order by
producing evidence to show that though caste A alone is mentioned in
the Order, caste B is also a part of caste A. The ratio of the judgment is
clearly discernible from paragraph 6 of the judgment, which is to the
following effect:-
“6. 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 deem to be
included in caste A. It may also be accepted that wherever one
caste has another name it has been mentioned in brackets after it
in the Order [see Aray (Mala) Dakkal (Dokkalwar) etc.].
Therefore, generally speaking it would not be open to any person
to lead evidence to establish that caste B (in the example quoted
above) is part of caste A notified in the Order.  Ordinarily therefore
it would not have been open in the present case to give evidence
that the Voddar caste was the same as the Bhovi caste specified
in the Order for Voddar caste is not mentioned in brackets after
the Bhovi caste in the Order.”
43. After noticing the above preposition in paragraph 6, this Court
noticed the peculiar circumstances of the case where in the Mysore
State as it was before reorganisation of 1956, there was no caste known
as Bhovi at all. This Court, however, further emphasised that “if there
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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”. In the above case, this Court, however,
further held that when the undisputed fact is that there was no caste
specifically known as Bhovi in the Mysore State and when one finds
mentioned in the Order, one has to determine which was the caste which
was meant. In paragraph 7 of the judgement, following has been laid
down:-
“7. But that in our opinion does not conclude the matter in
the peculiar circumstances of the present case. The difficult in
the present case arises from the fact (which was not disputed
before the High Court) that in the Mysore State as it was before
the re-organisation of 1956 there was no caste known as Bhovi at
all. The Order refers to a Scheduled caste known as Bhovi in the
Mysore State as it was before 1956 and therefore it must be
accepted that there was some caste which the President intended
to include after consultation with the Rajpramukh in the order,
when the Order mentions the caste Bhovi as a scheduled caste.
It cannot be accepted that the President included the caste Bhovi
in the order though there was no such caste at all in the Mysore
State as it existed before 1956. But when it is not disputed 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 casts 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.”
44. Shri Rohatgi, learned senior counsel appearing for the appellant
has placed much reliance on paragraph 7 of the judgment and has
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contended that this Court approved the exercise undertaken by the High
Court to find out which was the Bhovi caste, which was included in the
Constitution (Scheduled Castes) Order, 1950, hence, an evidence was
rightly looked into by the High Court, which received approval by this
Court. Shri Rohatgi further submits that although in the B.
Basavalingappa’s case the factum that there was no caste in the Mysore
State before reorganisation known as Bhovi at all was not disputed but
the fact that whether it is disputed or not disputed shall not make any
difference, whenever the issue is raised that has been answered by the
Courts looking into the evidence.
45. The observations made by this Court in paragraph 7 in no
manner dilutes the ratio of the judgment as laid down in paragraph 6
quoted above. This Court approved the High Court exercise of looking
into the evidence to determine which was the caste which was meant
by the word “Bhovi” in the Order in the peculiar circumstances of the
case where the fact was not disputed that there was no caste known as
Bhovi in the Mysore State before 1956. In paragraph 7, these following
two observations made by this Court are in full accord with the ratio as
laid down in paragraph 6, they are:-
“7. ………………………..It cannot be accepted that the
President included the caste Bhovi in the order though there was
no such caste at all in the Mysore State as it existed before 1956.
…………………………….
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.………………………………”
46. In the present case, the case of the respondent in the writ
petition was categorical that Gond Gowari was a caste which was in
existence since before 25.09.1956.  Even the High Court in the impugned
judgment has said that caste Gond Gowari did not exist prior to 1956
rather the High Court held that caste was there but it became extinct
prior to 1911. Thus, the circumstances in which this Court in B.
Basavalingappa’s case approved the looking of the evidence were
peculiar to that case and has no application in the facts of the present
case.
47. We may notice another Constitution Bench judgment in Bhaiya
Lal Vs. Harikishan Singh and Ors., AIR 1965 SC 1557, which was
delivered few months after judgment of B. Basavalingappa’s case,
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noted the ratio of judgment and reiterated that though the appellant was
not a Scheduled Caste as enumerated in the Scheduled Castes Order
but he belonged to another caste, which is sub-caste of Scheduled Caste,
cannot be looked into. In the above case, Bhaiya Lal was elected from
reserved seat. Election was challenged on the ground that Bhaiya Lal
belonged to Dohar caste and was not a Chamar. Bhaiya Lal in his
nomination has declared that he was member of Chamar Scheduled
Caste. Election Tribunal found against the elected candidate and set
aside the election. The High Court dismissed the appeal. Bhaiya Lal
questioned the judgment of the High Court as well as the Election Tribunal.
The case of the appellant was that he was a Dohar Chamar, which is a
sub-caste of Chamar Scheduled Caste. This Court held that the claim
that Dohar caste is a sub-caste of Chamar caste cannot be entertained.
in paragraph 8 following has been laid down:-
“8. Incidentally, we may point out that the plea that the Dohar
caste is a sub-caste of the Chamar caste cannot be entertained in
the present proceedings in view of the Constitution (Scheduled
Castes) Order, 1950. This Order has been issued by the President
under Article 341 of the Constitution. Article 341(1) provides that
the President may with respect to any State or Union Territory,
and where it is a State, after consultation with the Governor thereof,
by public notification, specify the castes, races or tribes or parts
of
or groups within castes, races, or tribes which shall for the
purposes of this Constitution be deemed to be Scheduled Castes
in relation to that State or Union Territory, as the case may be.
Sub-article (2) lays down that Parliament may by law include in
or exclude from the list of Scheduled Castes specified in a
notification issued under clause (1) any caste, race or tribe or part
of or group within any caste, race or tribe, but save as aforesaid a
notification issued under the said clause shall not be varied by any
subsequent notification. It is thus clear, that in order to determine
whether or not a particular caste is a scheduled caste within the
meaning of Article 341, one has to look at the public notification
issued by the President in that behalf. In the present case, the
notification refers to Chamar, Jatav or Mochi, and so, in dealing
with the question in dispute between the parties, the enquiry which
the Election Tribunal can hold is whether or not the appellant is a
Chamar, Jatav or Mochi. The plea that though the appellant is not
a Chamar as such, he can claim the same status by reason of the
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fact that he belongs to the Dohar caste which is a sub-caste of
the Chamar caste, cannot be accepted. It appears to us that an
enquiry of this kind would not be permissible having regard to the
provisions contained in Article 341. In the case of B.
Basavalingappa v. D. Munichinnappa this Court had occasion
to consider a similar question. The question which arose for
decision in that case was whether Respondent 1, though Voddar
by caste, belonged to the scheduled caste of Bhovi mentioned in
the Order, and while holding that an enquiry into the said question
was permissible, the Court has elaborately referred to the special
and unusual circumstances which justified the High Court in holding
that Voddar caste was the same as the Bhovi caste within the
meaning of the Order; 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.”
48. In Bhaiya Lal’s case, the Constitution Bench reiterated the
ratio of B. Basavalingappa’s case in following words:-
“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.”
49. We may notice few more judgments of this Court where the
law on the subject was explained and reiterated. In Srish Kumar
Choudhury Vs. State of Tripura and Ors., 1990 Supp SCC 220,
this Court had occasion to consider Article 342. In the above case, the
appellant had filed an application in a representative capacity before the
High Court claiming that he belonged to Laskar community, which has
always been treated in the erstwhile State of Tripura as a Scheduled
Tribe. The writ petition was dismissed by the High Court against which
the appeal was filed. This Court referred to earlier two Constitution
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Bench judgments in B. Basavalingappa’s case and Bhaiya Lal’s case.
The observations made by the Constitution Bench in B.
Basavalingappa’s case and Bhaiya Lal’s case were extracted in
paragraphs 8, 9 and 10.  In paragraph 9, Three Judge Bench quoted the
extract from Bhaiya Lal’s judgment and in paragraph 11, it was held
that the ratio of judgment of Bhaiya Lal’s case supports the view of
earlier judgment of Constitution Bench in B. Basavalingappa’s case.
In paragraphs 10 and 11, following has been laid down;-
“10. A similar dispute again came before a Constitution Bench in
Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 with
reference to a scheduled tribe in an election dispute.
Gajendragadkar, C.J. speaking for the court said : (SCR pp. 882-
83)
“It is obvious that in specifying castes, races or tribes, the
President has been expressly authorised to limit the notification
to parts of or groups within the castes, races or tribes, and that
must mean that after examining the educational and social
backwardness of a caste, race or tribe, the President may well
come to the conclusion that not the whole caste, race or tribe
but parts of or groups within them should be specified. Similarly,
the President can specify castes, races or tribes or parts thereof
in relation not only to the entire State, but in relation to parts of
the State where he is satisfied that the examination of the social
and educational backwardness of the race, caste or tribe justifies
such
specification. In fact, it is well known that before a
notification is issued under Article 341(1), an elaborate enquiry
is made and it is as a result of this enquiry that social justice is
sought to be done to the castes, races or tribes as may appear
to be necessary, and in doing justice, it would obviously be
expedient not only to specify parts or groups of castes, races
or tribes, but to make the said specification by reference to
different areas in the State.”
11. What we have extracted above clearly supports the view of
the other Constitution Bench, namely, the list is intended to be
final.”
50. The Three Judge Bench reiterated that Courts cannot enter
into an enquiry to determine whether the three terms indicated in the
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Presidential Order include Deshi Tripura which covers the Laskar
community. In paragraph 20, following was laid down:-
“20. The two Constitution Bench judgments indicate that enquiry
is contemplated before the Presidential Order is made but any
amendment to the Presidential Order can only be by legislation.
We do not think we should assume jurisdiction and enter into an
enquiry to determine whether the three terms indicated in the
Presidential Order include Deshi Tripura which covers the Laskar
community;……………………………………”
This Court also reiterated that enquiry is contemplated before the
Presidential Order is made.
51. The next judgment to be noticed is Palghat Jilla Thandan
Smudhaya Samrakshna Samithi and Anr. Vs. State of Kerala and
Anr., (1994) 1 SCC 359. In the above case, a writ petition was filed
claiming that the petitioner belonged to Thandan community, therefore,
a Scheduled Caste certificate be issued. The writ petition was allowed,
however, the petitioner was denied admission in M.B.B.S. course in
seat reserved for Scheduled Caste on the ground that she was not a
Thandan. A Three Judge Bench of this Court after noticing the ratio of
earlier two Constitution Bench judgments has held that the Court could
not assume the jurisdiction and order an enquiry to determine whether
the terms of the Presidential Order includes a particular community. In
paragraphs 17 and 18, following was laid down:-
“17. We may
usefully draw attention to the judgment of a
Bench of three learned Judges of this Court in Srish Kumar
Choudhury v. State of Tripura, 1990 Supp SCC 220. This
judgment considered the Constitution Bench judgments in
B. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269
and Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 and
certain other judgments. It held that the two Constitution Bench
judgments indicated that any amendment to the Presidential Orders
could only be by legislation. The Court could not assume jurisdiction
and order an enquiry to determine whether the terms of the
Presidential Order included a particular community. A State
Government was entitled to initiate appropriate proposals for
modification in cases where it was satisfied that modifications
were necessary and, if after appropriate enquiry, the authorities
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were satisfied that a modification was required, an amendment
could be undertaken as provided by the Constitution.
18. These judgments leave no doubt that the Scheduled
Castes Order has to be applied as it stands and no enquiry can be
held or evidence let in to determine whether or not some particular
community falls within it or outside it. No action to modify the
plain effect of the Scheduled Castes Order, except as contemplated
by Article 341, is valid.”
52. A Two Judge Bench in Kumari Madhuri Patil and Anr. Vs.
Addl. Commissioner, Tribal Development and Ors., (1994) 6 SCC
241 had occasion to consider the Constitution (Scheduled Tribes) Order,
1950 as applicable to State of Maharashtra. In Constitution (Scheduled
Tribes) Order, 1950, caste “Mahadeo Koli” was included. The appellants
claimed that they were entitled to Scheduled Tribe certificate of Mahadeo
Koli whereas caste was shown in admission register as “Hindu Koli”.
The Scheduled Caste certificate was refused. A writ petition was filed
in the High Court, which was dismissed against which the matter came
to this Court. This Court held that Scheduled Caste notified was Mahadeo
Koli and the petitioners being Hindu Koli were not entitled for the
Scheduled Tribes certificate. In paragraph 9, following has been laid
down:-
“9. …………………………………….It is common knowledge
that endeavour of States to fulfil constitutional mandate of
upliftment of Scheduled Castes and Scheduled Tribes by providing
for
reservation of seats in educational institutions and for
reservation of posts and appointments, are sought to be denied to
them by unscrupulous persons who come forward to obtain the
benefit of such reservations posing themselves as persons entitled
to such status while in fact disentitled to such status. The case in
hand is a clear instance of such pseudo-status. Kolis have been
declared to be OBC in the State of Maharashtra being fishermen,
in that their avocation is fishing and they live mainly in the coastal
region of Maharashtra. Mahadeo Kolis are hill tribes and it is not
a sub-caste. Even prior to independence, the Maharashtra
Government declared Mahadeo Koli to be criminal tribe as early
as 29-5-1933 in Serial No. 15 in List II thereof. In 1942 Resolution
in Serial No. 15 in Schedule B of the Bombay resolution Mahadeo
Koli tribe was notified as a Scheduled Tribe. It was later amended
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as Serial No. 13. In the Presidential Scheduled Castes/Scheduled
Tribes Order, 1950, it was reiterated. A slight modification was
made in that behalf by the Presidential Notification dated
29-10-1956. In the 1976 Amendment Act, there is no substantial
change except removing the area restriction. Thus Mahadeo Koli,
a Scheduled Tribe continued to be a Scheduled Tribe even after
independence. The Presidential Notification, 1950 also does
recognise by public notification of their status as Scheduled Tribes.
The assumption of the Division Bench of the Bombay High Court
in Subhash Ganpatrao Kabade case1, that Mahadeo Koli was
recognised for the first time in 1976 under Amendment Act, 1976,
as Scheduled Tribe is not relatable to reality and an erroneous
assumption made without any attempt to investigate the truth in
that behalf. Presidential declaration, subject to amendment by
Parliament being conclusive, no addition to it or declaration of
castes/tribes or sub-castes/parts of or groups of tribes or tribal
communities is permissible.”
53. A Three Judge Bench in Nityanand Sharma and Anr. Vs.
State of Bihar and Ors., (1996) 3 SCC 576 had also considered the
similar question. The question which was up for consideration has been
noted in paragraph 2 of the judgment to the following effect:-
“2. Short but an important question of constitutional law of the
power of the court to declare a particular tribe to be Scheduled
Tribe
under Scheduled Castes and Scheduled Tribes Order, 1950
as amended by Scheduled Castes and Scheduled Tribes Orders
(Amendment Act), 1976 (for short “the Act”) is the primary
question.”
54. The petitioner in the above case belonged to Lohar community.
They claimed Scheduled Tribe certificate. The State resisted the claim
that Lohar in State of Bihar is recognised as Other Backward Class and
not Scheduled Tribe. The entry in the Scheduled Tribe Order mentioned
Lohara/Lohra. This Court held that the question which is up for
consideration is no longer res integra and is covered by ratio of the
Constitution Bench judgment in Bhaiya Lal and B. Basavalingappa
case. In paragraphs 13 and 15, following was laid down:-
“13. The question then is: Whether Lohars could be considered
by the Court as synonyms of Loharas or Lohras? This question is
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no longer res integra. In Bhaiyalal v. Harikishan Singh, AIR
1965 SC 1557 a Constitution Bench of this Court had considered
in an election petition whether Dadar caste was a Scheduled Caste.
It held that the President in specifying a caste, race or tribe has
expressly been authorised to limit the notification to parts of or
groups within the caste, race or tribes. It must mean that after
examining the social and educational backwardness of a caste,
race or a tribe, the President may come to the conclusion that not
the whole caste, race or tribe, but parts of or groups within them
should be specified as Scheduled Caste or Scheduled Tribe. The
result of the specification is conclusive. Notification issued under
Article 341(1), after an elaborate enquiry in consultation with the
Governor and reaching the conclusion specifying particular caste,
race or tribe with reference to different areas in the State, is
conclusive. The same view was reiterated in B. Basavalingappa
v. D. Munichinnappa, AIR 1965 SC 1269.
15. It is for Parliament to amend the law and the Schedule and
include in and exclude from the Schedule, a tribe or tribal
community or part of or group within any tribe or tribal community
for the State, District or region and its declaration is conclusive.
The Court has no power to declare synonyms as equivalent to the
Tribes specified in the Order or include in or substitute any caste/
tribe etc. It would thus be clear that for the purpose of the
Constitution, “Scheduled Tribes” defined under Article 366(25)
as substituted (sic) under the Act, and the Second Schedule
thereunder are conclusive. Though evidence may be admissible
to a limited extent of finding out whether the community which
claims the status as Scheduled Caste or Scheduled Tribe, was, in
fact, included in the Schedule concerned, the Court is devoid of
power to include in or exclude from or substitute or declare
synonyms to be of a Scheduled Caste or Scheduled Tribe or parts
thereof or group of such caste or tribe.”
55. Rejecting the claim of Lohar as Scheduled Tribe, following
was laid down in paragraphs 18 and 20:-
“18. It is seen that in the Second Schedule in Part III of the Act,
as extracted hereinbefore, Lohar was not included as a Scheduled
Tribe. It is only, as evidenced from the translated version, that the
community ‘Lohar’ came to be wrongly translated for the word
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‘Lohra’ or ‘Lohara’ and shown to have been included in the Second
Schedule, Part III, applicable to Bihar State. Mr. B.B. Singh,
therefore, is right in placing before us the original version in English
and the translated version.
20. Accordingly, we hold that Lohars are an Other Backward
Class. They are not Scheduled Tribes and the Court cannot give
any declaration that Lohars are equivalent to Loharas or Lohras
or that they are entitled to the same status. Any contrary view
taken by any Bench/Benches of Bihar High Court, is erroneous.
It would appear that except some stray cases, there is a consistent
view of that Court that Lohars are not Scheduled Tribes. They
are blacksmiths. We approve the said view laying down the correct
law.”
56. Now, we come to a subsequent Constitution Bench judgment
of this Court in State of Maharashtra Vs. Milind and Ors., (2001) 1
SCC 4. Before the Constitution Bench, two questions arose, which are
noted in paragraph 1 of the judgment to the following effect:-
“In this appeal, the following two questions arise for consideration:
(1) Whether at all, it is permissible to hold inquiry 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
entry concerned in the Constitution (Scheduled Tribes) Order,
1950?
(2) Whether “Halba-Koshti”
caste is a sub-tribe within the meaning
of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order
relating to the State of Maharashtra, even though it is not
specifically mentioned as such?”
57. Entry 19 of the Constitution (Scheduled Tribes) Order, 1950
as applicable in the State of Maharashtra was Halba/Halbi. The claim
was raised by another caste Halba-Koshti that they are also entitled for
issue of Scheduled Tribe certificate. The caste certificate of the
respondent was rejected by the Caste Scrutiny Committee against which
an appeal was filed, which was dismissed holding that respondent No.1
belonged to Koshti and did not belong to Halba/Halbi Scheduled Tribe.
Writ petition was filed by respondent No.1, which was allowed by the
High Court holding that it was permissible to enquire whether any sub-
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division of a tribe was a part and parcel of the tribe mentioned therein
and that ‘Halba-Koshti’ is a subdivision of main tribe ‘Halba’/’Halbi’ as
per Entry No. 19 in the Scheduled Tribe Order applicable to Maharashtra.
In paragraph 5 of the judgment, following was held by this Court:-
“5. The High Court allowed the writ petition and quashed
the impugned orders inter alia holding that it was permissible to
inquire whether any subdivision of a tribe was a part and parcel
of the tribe mentioned therein and that “Halba-Koshti” is a
subdivision of main tribe “Halba/Halbi” as per Entry 19 in the
Scheduled Tribes Order applicable to Maharashtra. Hence the
State of Maharashtra has come up in appeal by special leave,
questioning the validity and correctness of the order of the High
Court allowing the writ petition of Respondent 1.”
58. This Court after noticing the constitutional provisions held that
it is not possible to say that State Governments or any other authority or
courts or tribunals are vested with any power to modify or vary the
Scheduled Tribes Orders. This Court also held that 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 is included in Presidential
Order if they are not expressly included. In paragraph 12, following has
been laid down:-
“12.   ……………………………………….It appears that the
object of clause (1) of Articles 341 and 342 was to keep away
disputes touching
whether a caste/tribe is a Scheduled Caste/
Scheduled Tribe or not for the purpose of the Constitution. Whether
a particular caste or a tribe is Scheduled Caste or Scheduled Tribe
as the case may be, within the meaning of the entries contained 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 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
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schedules. In this view it serves no purpose to look at gazetteers
or glossaries for establishing that a particular caste/tribe is a
Scheduled 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 possible to say that State Governments or any other
authority or courts or Tribunals are vested with any power to
modify or vary the said Orders. If that be so, no inquiry is
permissible and no evidence can be let in for establishing that a
particular caste or part or group within tribes or tribe is included in
Presidential Order if they are not expressly included in the Orders.
Since any exercise or attempt to amend the Presidential Order
except as provided in clause (2) of Articles 341 and 342 would be
futile, holding any inquiry or letting in any evidence in that regard
is neither permissible nor useful.”
59. The Constitution Bench reiterated that the power to include
or exclude, amend or alter the Presidential Order is expressly and
exclusively conferred on and vested with the Parliament and Courts
cannot and should not extend jurisdiction to deal with the question as to
whether a particular caste or sub-caste or group or part of tribe is included
in any one
of the entries mentioned in the Presidential Order.  Following
was laid down in paragraph 15:-
“15. Thus it is clear that States have no power to amend
Presidential Orders. Consequently, a party in power or the
Government of the day in a State is relieved from the pressure or
burden of tinkering with the Presidential Orders either to gain
popularity or secure votes. Number of persons in order to gain
advantage in securing admissions in educational institutions and
employment in State services have been claiming as belonging to
either Scheduled Castes or Scheduled Tribes depriving genuine
and needy persons belonging to Scheduled Castes and Scheduled
Tribes covered by the Presidential Orders, defeating and
frustrating to a large extent the very object of protective
discrimination given to such people based on their educational
and social backwardness. Courts cannot and should not expand
jurisdiction to deal with the question as to whether a particular
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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 the said Orders cannot
be amended or varied except by law made by Parliament. The
power to include or exclude, amend or alter Presidential Order is
expressly and exclusively conferred on and vested with Parliament
and that too by making a law in that regard. The President had
the benefit of consulting the 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
Parliament that is in a better position to know having the 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 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………………………………….”
60. It is further to be noticed that Constitution Bench in Milind’s
case (supra) has noted the ratio of earlier two Constitution Bench
judgments in B. Basavalingappa’s case and Bhaiya Lal’s case and in
paragraph
28 has reaffirmed the ration of above two Constitution Bench
judgments. In paragraph 28, following is laid down:-
“28. Being in respectful agreement, we reaffirm the ratio of the
two Constitution Bench judgments aforementioned and state in
clear terms that no inquiry at all is permissible and no evidence
can be let in, to find out and decide that if any tribe or tribal
community or part of or group within any tribe or tribal community
is included within the scope and meaning of the entry concerned
in the Presidential Order when it is not so expressly or specifically
included. Hence, we answer Question 1 in the negative.”
61. In view of the ratio of judgments of this Court as noticed
above, the conclusion is inescapable that the High Court could not have
entertained the claim or looked into the evidences to find out and decide
that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is
included in the Constitution (Scheduled Tribes) Order, 1950.  It is further
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clear that there is no conflict in the ratio of Constitution Bench judgments
of this Court in B. Basavalingappa’s case and State of Maharashtra
Vs. Milind and Ors. (supra). The ratio of B. Basavalingappa’s case
as noted in paragraph 6 of the judgment and extracted above is reiterated
by subsequent two Constitution Bench judgments in Bhaiya Lal’s case
and Milind’s case. There being no conflict in the ratio of the above
Three Constitution Bench judgments, we do not find any substance in
submission of Shri Rohatgi that for resolving the conflict, the matter
need to be referred to a larger Constitution Bench. We, thus, answer
question Nos.1 and 2 in following words:-
(i) The High Court in the writ petition giving rise to these appeals
could not have entertained the claim of a caste “Gowari” that
it be declared a Scheduled Tribe as “Gond Gowari” included
at Entry No.18 of the Constitution (Scheduled Tribes) Order,
1950 nor High Court could have taken evidence to adjudicate
the above claim.
(ii) There is no conflict in the ratio of the judgment of Constitution
Bench of this Court in Basavalingappa’s case and Milind’s
case.
QUESTION NOS. 3 AND 4
Both the above questions being inter-related are being taken
together.
62. The Scheduled Tribe “Gond Gowari” as existing in Item No.28
of Entry 18 of Constitution (Scheduled Tribes) Order, 1950 applicable to
State of Maharashtra is continuing in the List of Scheduled Tribes of
Bombay State (now State of Maharashtra) since 29.10.1956. To a large
number of members of the “Gond Gowari” caste Scheduled Tribe
certificates have been issued by the competent authority in the State of
Maharashtra from time to time. In Writ Petition No. 4779 of 2008
(Adivasi Gond Govari (Gowari) Sewa Mandal through its President
vs. State of Maharashtra and others) the writ petitioner has prayed
for quashing and setting aside the caste validity certificates issued in the
name of respondent Nos. 4 to 19 as “Gond Gowari”, Scheduled Tribe.
The fact that before the High Court there was a writ petition where
caste certificates granted to 16 respondents of “Gond Gowari” were
sought to be quashed clearly proved the existence of community “Gond
Gowari”. Although there have been recommendations by the State of
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Maharashtra earlier in the year 1967 and thereafter in the year 1979 to
include the “Gowari” as Scheduled Tribe, the said recommendations
were never accepted by the Parliament since in spite of passing of several
Amendment Acts by the Parliament to the Constitution (Scheduled
Tribes) Order, 1950 Entry of “Gond Gowari” in the Scheduled Tribe was
never deleted. A private bill to delete Entry of “Gond Gowari” and
substitute it by Gowari was not passed by the Parliament and turned
down. The High Court has also referred to and relied on the book “Tribes
and Castes of the Central Provinces of India by R.V. Russell and Rai
Bahadur Hira Lal wherein castes “Gond Gowari” and “Gowari” were
separately dealt with as distinct castes. It is also on the record that the
State of Maharashtra even though it had recommended vide letters dated
26.03.1979 and 12.06.1979 to include Gowari in the list of Scheduled
Tribes but on 06.11.1981 State of Maharashtra wrote to Ministry of
Home Affairs, New Delhi where dealing with the subject of the
Scheduled Tribes in paragraph 3(iii) following was stated:
“3 (iii) Following tribes do not fulfill the criteria of S.Ts and hence
State Government does not consider it necessary to include them
in the list of S.Ts of this State and hence their inclusion is not
recommended:
1) Otari
2) Gowari
3) Dhangar
4) Mana”
63. Thus, the State Government recommended Gowari not to be
included as they having not fulfilled criteria of Scheduled Tribe. It is
to
be noted that in letter dated 26.03.1979 of the Government of Maharashtra
to the Union of India although recommendation was made to include
Gowari in Scheduled Tribe but there was no recommendation to delete
“Gond Gowari” from the list of Scheduled Tribes. In letter dated
26.03.1979 with regard to Gowari, following statement was made:
“III] GOWARI: The community is at present included in the list
of Scheduled Tribes, as “Gond Gowari”. It has been represented
to Government that Gowari community is not a sub-group of the
tribe, Gond, but is is a separate tribe in itself. The State Government
had accordingly recommended to the Government of India to show
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the Gowari tribe separately. A copy of Chief Minister’s D.O. Letter
dated 27.1.1967 is enclosed. The tribe Gowari may now be included,
as a separate tribe. The Joint Committee on the Scheduled Castes
and Scheduled Tribes Orders(Amendment) Bill 1967, had
recommended the inclusion of the community as a separate tribe
for Vidarbha area.”
64. Thus, the recommendation to include Gowari as a separate
Scheduled Tribe was forwarded by the State of Maharashtra in the year
1979 which was withdrawn in 1981 and after 1981 the State’s stand has
been that “Gond Gowari” and “Gowari” are two separate castes and
Gowari is not entitled for the benefit of Scheduled Tribe certificate. The
Government of State of Maharashtra, Tribal Development Department
has issued G.R. dated 24.04.1985 where the State Government has
referred to “Gond Gowari” as small sub-Tribe of Gond and non-Scheduled
Tribe caste was referred as Gowari. Along with the Government
Resolution dated 24.04.1985 a comparative Chart was annexed of
Scheduled Tribe and non-Scheduled Tribe community which was claiming
benefit. It is useful to extract comparative table which was part of
Government Resolution dated 24.04.1985 which is to the following effect:
 Number 
of 
Scheduled tribe 
from the list and 
the 
tribe, 
corresponding 
tribe or 
sub-
tribe on 
that 
number 
General information 
of 
residence 
of 
Scheduled 
tribes, 
corresponding 
tribes, sub-tribe and 
native
place, 
population 
of 
corresponding tribe, 
sub-tribe and other 
general information 
Non-
scheduled 
Caste/tribe 
which 
can 
obtain Caste 
Certificate by 
showing the 
similarity of 
names (From 
column No.3) 
of Scheduled 
tribes, 
corresponding 
tribes
General places 
of 
residence, 
approximate 
population and 
other 
general 
information of 
Non-scheduled 
Caste/Tribe 
Traditional 
Occupation 
of 
Non-
scheduled 
Caste/Tribe
Remarks and 
general 
information 
1
2 
3 
4 
5 
6 
7 
8 (18) Gond 
Govari 
There is a small sub 
tribe of Gond tribe. 
There is no separate 
mention 
of 
population of this 
sub-tribe.  Their 
population 
is 
merged 
in 
population of Gond 
tribe.. 
Govari, 
Gavari, 
Gaygovari, 
Milk-Govari 
The population 
of 
Govari, 
Gavari 
should 
be 2 lakhs.  This 
caste is spread 
mainly 
in 
Nagpur, 
Amravati, 
Wardha, 
Yavatmal,  
Their main 
occupations 
are 
Farming, 
Cow-
Animal 
Farming, 
Production 
of 
Milk, 
Husbandry.  
There is no 
social relation 
of Govari and 
corresponding 
tribes with 
Gond tribe.

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This tribe is found 
in Kurkheda Taluka, 
Gadchiroli district.  
People from Gond 
tribe who do  animal 
farming are called 
by 
locals 
“Gond 
Govari.  In 1901, 
their population in 
Chandrapur district 
was 3000.  As they 
belong 
to 
Gond 
tribe, their language, 
social life, customs, 
traditions, religious 
rituals are that of 
Gond.  Clan, Family 
god/goddess, 
surnames and other 
is same as that of 
Gond
Bhandara, 
Chandrapur, 
Gaadchiroli 
districts. 
“Krishna, 
Ganga, Jamuna” 
are 
the 
worshipping 
god/goddesses 
of 
this 
tribe.  
Kade-Kodevan 
is 
their 
main 
God.

They 
have 
caste 
panchayat 
and 
its 
chief 
is 
called 
“Gondya”.  
They 
do 
not 
marry 
in 
the 
same 
clan.  
Clans such as 
Tohar, 
Ambadare, 
Kohachya, 
Ravat, Sakhena, 
Thakare, 
Sonavane.
There is no 
traditional, 
hereditary, 
language, 
marital 
relations 
between 
them. Gond 
Govar do not 
milk the 
cows.  They 
only do 
animal 
farming.  
Instead 
Govari tribe 
do the 
production 
of milk.  Due 
to the 
similarity of 
name of 
“Gavari” 
word, people 
of “Govari, 
Gavari” 
obtain the 
Scheduled 
tribe 
certificate to 
take the 
benefits of 
the tribe. 
65. The above materials which were on the record before the
High Court as well as continuance of “Gond Gowari” as Scheduled
Tribe in the Constitution (Scheduled Tribes) Order, 1950 for the last
more than 60 years, it was not open for the High Court to proceed into
the inquiry as to whether Scheduled Tribe “Gond Gowari” is not in
existence.
66. The High Court in the impugned judgment has formulated
three questions in paragraph 31 of the judgment which is to the following
effect:
“Therefore, the questions involved in all these cases are
threefold as under:
(1) Is it permissible for this Court to hold that it is the Gowari
community alone which is meant by 28th Item “Gond Gowari” in
the cluster of tribes in Entry No. 18 in the Constitution (Scheduled
Tribes) Order?,
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(2) Whether there existed any tribe as “Gond Gowari” as
on 29-10-1956, i.e. the date of its inclusion as 28th Item in Entry
No. 18 of the said Order, other than Gond and Gowari?,
(3) If there did not exist as such any tribe as “Gond Gowari”,
whether it was Gowari community alone which was included as
28th Item in Entry No.18 of the said Order?”
67. The High Court referring to this Court’s judgment in
B. Basavalingappa proceeded to enter into the material produced by
the respondents to the writ petition as to whether “Gond Gowari” were
not in existence prior to their inclusion in Constitution (Scheduled Tribes)
Order, 1950. We have already held that the ratio of B. Basavalingappa
judgment did not permit the High Court to enter into the issue as to
whether a Tribe which is included in the Constitution (Scheduled Tribes)
Order, 1950 did not exist. The High Court proceeded to answer to question
Nos. 2 and 3 as noted above in paragraphs 34 to 57.
68. Now, we proceed to consider the reasons given by the High
Court in coming to the conclusion that Tribe “Gond Gowari” became
extinct prior to 1911. The High Court in paragraphs 41 to 43 of the
judgment has noticed the Census of India 1891. The High Court itself in
the aforesaid paragraphs have noted that Census of 1891 separate figures
were given of “Gowari” and “Gond Gowari”. In paragraph 43 following
observations have been made by the High Court:
“43......The separate
population figures of Gowaris and
“Gond Gowari”s in the four districts of (i)Nagpur, (ii) Wardha,
(iii)Chanda, and (iv) Bhandara  in Nagpur Division were shown in
the Table XIII in the Census Report of 1891. The strength of
Gowaris and “Gond Gowari”s in the said Census was shown in
Nagpur as 13,491 and 11, in Wardha as 10,397 and 60, in Chanda
11,217 and 19, in Bhandara 49212 and 335 respectively in the part
of C.P. and Berar.”
69. The High Court has also noticed the Census of 1901 and
noticed that in Nagpur Division the total population of “Gowari” and
“Gond Gowari” was mentioned. Gowari was mentioned as 91,632 and
whereas “Gond Gowari”s were mentioned in five Districts of Nagpur
Division as 2,553. The High Court then proceeded to examine the Census
of 1911 and it noticed that earlier classification of caste according to
their social precedents was changed reverting back to the past class
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classification of 1891 caste in according to traditional occupations, out
of 37 main occupational groups, group IV was of Forest and Hill Tribes
and Group V was of Graziers and Dairymen. The High Court noticed
that in Census of 1911 Group V in Central Provinces mentioned Gowari
as 157,580 but there was no mention of “Gond Gowari”. Similarly, Census
of 1921 of Group V of Graziers and Dairymen was noticed where Gowari
was mentioned as 155,902. After noticing the aforesaid facts from Census
the High Court recorded its conclusion in paragraph 57 to the following
effect:
“57. In our view, the tribe “Gond Gowari”, which was a
small hybrid caste formed by an alliance of Gond and Gowaris
was completely extinct before 1911 Census and no trace of it
was found either in the Maratha country of the C.P. and Berar or
in the State of Madhya Pradesh. We, therefore, hold that there
did not exist any tribe as “Gond Gowari” as on 29-10-1956, i.e.
the date of its inclusion as 28th Item in Entry No. 18 of the
Constitution (Scheduled Tribes) Order in relation to the State of
Maharashtra and it was Gowari community alone shown as “Gond
Gowari”. We, therefore, answer the question Nos. (2) and (3)
accordingly.”
70. The High Court itself has in its judgment noticed and found
the mention of “Gond Gowari” in Census of 1891 and 1901. The substantial
figures of “Gond Gowari” in the above two Censuses in Nagpur Division
were noticed. The High Court itself having noticed that the basis
of
Census in 1911 was changed, classification was made on the basis of
traditional occupation in which group IV was of Forest and Hill Tribes
and Group V was of Graziers and Dairymen, the figures of 1911, 1921
and 1931 have been noticed where in Group V Graziers and Dairymen,
there was mention of Gowari. Mere fact that in Censuses of 1911, 1921
and 1931 figures were given only of Group V, i.e., Graziers and Dairymen
and there was no mention of “Gond Gowari” cannot lead to conclusion
that “Gond Gowari” have become extinct before 1911. A Scheduled
Tribe which admittedly was in existence and had a distinct identity shall
not be treated to have become extinct merely because the basis of
Census has been changed in the subsequent years. The benefit given to
a Scheduled Tribe cannot be taken away on the basis of figures given in
Census operation only. There have been amendments in Constitution
(Scheduled Tribes) Order, 1950 from time to time. Several Tribes were
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deleted from the list by the Act of Parliament and several new Tribes
were included. There had been recommendations by the Joint Committee
of Parliament for exclusion of the Tribes which were excluded if there
was no return in respect of those communities in Censuses of 1961 and
1971. We may refer to Statement of Objects and Reasons of The
Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1976
which has been stated:
“.....The Committee had also recommended exclusion of certain
communities from the lists of Scheduled Castes and Scheduled
Tribes. These exclusions are not being made at present and such
communities are being retained in the lists with the present area
restrictions. Such of the communities in respect of which the Joint
Committee had recommended exclusion on the ground that there
were no returns in respect of these communities in the censuses
of 1961 and 1971.”
71. The above clearly indicates that those Scheduled Tribes and
Schedules Castes were excluded if only there was no return in respect
of Census of 1961 and 1971. We, thus, are of the view that the whole
basis of judgment of the High Court that Tribe “Gond Gowari” was
extinct prior to 1911 Census and in subsequent Censuses 1911, 1921 and
1931 they were not shown in Group V is completely flawed. The inclusion
of sub-Tribe as “Gond Gowari” in the Constitution (Scheduled Tribes)
Order, 1950 was on 29.10.1956 when sub-Tribe “Gond Gowari” was
included in the Scheduled Tribe list it has to be presumed that the said
inclusion was after consultation with the State and after considering the
relevant materials. The High Court could not have questioned the inclusion
of the Scheduled Tribe “Gond Gowari” in the Constitution (Scheduled
Tribes) Order, 1950 on the basis of reasoning as adopted by the High
Court. The High Court has referred to and relied on the book “Tribes
and Castes of the Central Provinces of India” by R.V. Russell and Rai
Bahadur Hira Lal in which book in Volume III community Gond, “Gond
Gowari” and Gowari were all separately dealt with, describing “Gond
Gowari” in Volume III Russell states:
“Gond-Gowari.—A small hybrid caste formed from alliances
between Gonds and Gowaris or herdsmen of the Maratha country.
Though they must now be considered as a distinct caste, being
impure and thus ranking lower than either the Gonds or Gowaris,
they are still often identified with either of them. In 1901 only
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3000 were returned, principally from the Nagpur and Chanda
Districts. In 1911 they were amalgamated with the Gowaris, and
this view may be accepted as their origin is the same. The Gowaris
say that the Gond-Gowaris are the descendants of one of two
brothers who accidentally ate the flesh of a cow. Both the Gonds
and Gowaris frequent the jungles for long periods together, and it
is natural that intimacies should spring up between the youth of
either sex. And the progeny of these irregular connections has
formed a separate caste, looked down upon by both its progenitors.
The Gond-Gowaris have no subcastes, and for purposes of
marriages are divided into exogamous septs, all bearing Gond
names. Like the Gonds, the caste is also split into two divisions,
worshipping six and seven gods respectively, and members of
septs worshipping the same number of gods must not marry with
each other.”
72. In the same Volume Gowari has been dealt with:
“Gowari.—The herdsman or grazier caste of the Maratha country,
corresponding to the Ahirs or Gaolis. The name is derived from
gai or gao, the cow, and means a cowherd. The Gowaris numbered
more than 150,000 persons in 1911, of whom nearly 120,000
belonged to the Nagpur division and nearly 30,000 to Berar. In
localities where the Gowaris predominate, Ahirs or Gaolis, the
regular herdsman caste,are found only in small numbers. The
honorific title of the Gowaris is Dhare, which is said to mean
‘One who keeps cattle.’ The Gowaris
rank distinctly below the
Ahirs or Gaolis.”
73. In the same Volume while describing the sub-Caste of Gowari
following description is given:
“The Gowaris have three divisions, the Gai Gowari, Inga, and
Maria or “Gond Gowari”. The Gai or cow Gowaris are the highest
and probably have more Gaoli blood in them. The Inga and Maria
or “Gond Gowari”s are more directly derived from the Gonds.
Maria is the name given to a large section of the Gond tribe in
Chanda. Both the other two subcastes will take cooked food from
the Gai Gowaris and the “Gond Gowari”s from the Inga, but the
Inga subcaste will not take it from the Gond, nor the Gai Gowaris
from either of the other two. The “Gond Gowari”s have been
treated as a distinct caste and a separate article is given on them,
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but at the census Mr. Marten has amalgamated them with the
Gowaris. This is probably more correct, as they are locally held to
be a branch of the caste. But their customs differ in some points
from those of the other Gowaris. They will admit outsiders from
any respectable caste and worship the Gond gods, [115] and there
seems no harm, therefore, in allowing the separate article on them
to remain.”
74. In the above passage it has been categorically stated that
“Gond Gowari” has been treated as a distinct caste and in the Census
they have been amalgamated with Gowari. The account given by Russell
does not lead to any conclusion that “Gond Gowari” were extinct before
1911.
75. It is also relevant to note that it was after the report of Backward
Classes Commission (1955), where recommendation was made to include
Gowari as sub-Tribe of Gond for the State of Madhya Pradesh,
consequently by Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1956 in State of Madhya Pradesh “Gond Gowari”
was added in Entry  12 and after re-organisation of the State, in Districts
which came into State of Bombay, “Gond Gowari” was added by
Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956
dated 29.10.1956 “Gond Gowari” was added. There have been conscious
addition by Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1956 and Scheduled Castes and Scheduled Tribes Lists
(Modification) Order, 1956 as
“Gond Gowari” it cannot be accepted
that the Parliament included Tribe which had become extinct before
1911.
76. The High Court in paragraph 68 of the judgment has itself
referred to Report of Research Officers dated 12.05.2006. On the basis
of the decision taken in respect Gowari community under the
Chairmanship of Hon’ble Chief Minister on 29.05.2005 Tribal
Development Department was entrusted to ascertain the facts. The
Research Officers on 12.05.2006 personally visited the areas in which
maximum population of Gowari caste and “Gond Gowari” caste were
found in different villages of District Gadchiroli. It shall be useful to
refer to the paragraph 68 of the judgment of the High Court which is to
the following effect:
“68. After going through the report dated 12-5-2006 (wrongly
mentioned as ’18-5-2006'), we find that the Research Officers
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visited the areas. The Committee of the Research Officers
conducted search of revenue and school records of certain
claimants. It is the finding of the said Committee that upon
inspection of P-I Register prior to 1950 in the Taluka Office of
Land Records at Kurkheda, no evidence is found of the entry
“Gond Gowari”, but the evidence is of the entries of Gowari or
Gowara. The Committee also inspected the school records of the
period prior to 1950 from the Zilla Parishad Primary School, which
included the school admission register and the affidavits. It found
one entry of Gowari (Gond) made on 1-7-1955 and rest of the
entries are of Gowara or Gowari, which are also found in the Zilla
Parishad Primary Schools at Ramgad, Yenglekheda, Saletola. The
Research Officers further record the finding that upon oral
interviews of the villagers, it is found that “Gond Gowari” tribe is
a sub-tribe of Gond and their cultural traits and customs are found
similar to those of Gond tribe. It further states that when the
information about Gowari tribe is collected, it was found to be an
independent tribe, having no similarity in cultural traits and customs
with Gonds or “Gond Gowari”s. The Committee has tried to lay
down the six tests to make out a distinction between Gowaris and
“Gond Gowari”s.”
77. The High Court in the above paragraph itself has noticed that
the Research Officers conducted research and has also found Entry of
“Gond Gowari” made on 01.07.1955. Thus, the
Research Officers before
29.10.1956 found “Gond Gowari” hence the above evidence which was
relied by the High Court itself proved that “Gond Gowari” Tribe was in
existence and found personally by the Research Officers. Although in
paragraph 68 the above facts were noticed by the High Court but in
paragraph 74 in the heading: ADJUDICATION BY US in sub-para
(3) the High Court states:
“74(3) There is no reason to discard the report of the Research
Officers submitted on 12/18-5-2006. The Research Officers
personally visited the core area of residence of Gond Gowaris,
inspected the old record of Zilla Parishad Schools and the Land
Revenue Department, conducted oral interviews of the villagers,
but did not find any Entry as Gond Gowari or any person of
this tribe. The Research Officers record the finding that Gowari
tribe has no affinity with Gonds. “
(emphasis by us)
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78. The conclusion of the High Court that Research Officers did
not find any Entry as “Gond Gowari” is factually incorrect and contrary
to what was found in paragraph 68 as noted above.
79. We have already noted above the Government Resolution
dated 24.4.1985 issued by the Tribal Development Department of the
State, the difference between “Gond” and “Gond Gowari”, the difference
in the character and customs of Scheduled Tribe community of “Gond
Gowari” and community of Gowari as extracted above. The Government
Resolution was issued after study by the State Government, the High
Court although has noticed above Resolution in paragraph 70 of the
judgment but has given no reason as to why differentiation in two Tribes
is to be discarded.
80. There is one more reason due to which the conclusion of the
High Court that Scheduled Tribe “Gond Gowari” was extinct before
1911 has to be flawed. The reason is that in Writ Petition No.4779 of
2008 filed by Advasis “Gond Gowari” a prayer was made to quash the
Scheduled Tribe certificates to “Gond Gowari” granted to respondent
Nos. 4 to 19. The High Court by passing order has called for certificates
of “Gond Gowari” which are dealt with by the High Court in paragraph
77 to 83. In paragraph 77 following is the discussion by the High Court:
“77. .......The record shows that 22 claimants produced the extracts
of P-I Register maintained by the Taluka Land Records
Departments showing the
caste of their forefathers as “Gond
Gowari” prior to 1950. Except this, none other claimants out of
136, produced any record of the period prior to the year 1950,
evidencing their caste/tribe as “Gond Gowari”, but the documents
produced by them indicate their caste/tribe as Gond, Gowara or
Gowari. If the documents produced by all such 136 claimants
prior to 1950 and subsequent to 1950 are taken into consideration,
the same indicate that 39 claimants produced the documents
indicating their tribe as “Gond Gowari”; 53 claimants produced
the documents indicating their tribe as Gowari; 29 claimants
produced the documents showing their tribe as Gowara; and 9
claimants produced the documents showing their tribe as Gond.
This position is also admitted and demonstrated in the reply
filed by the Committee. ”
81. The High Court further in paragraph 83 after perusing the
records of the Committee found 39 claimants produced the documents
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which are in the nature of entries in P-I revenue record pertaining to the
period 1922-1923. When before the High Court Scheduled Tribe
certificates of “Gond Gowari” were filed in large number and there
were documents to support by the revenue entries some of which are
prior to 1950 and which certificates were sought to be quashed in the
writ petition, the existence of Scheduled Tribe “Gond Gowari” was very
much found. The Caste Scrutiny Committee having validated the said
certificates it was not open for the High Court to say that Scheduled
Tribe “Gond Gowari” became extinct prior to 1911. The host of the
evidence which was before the High Court including the Research
Officers’ Report dated 12.05.2006 and Scheduled Tribe certificates of
the candidates who were “Gond Gowari” it was not open for the High
Court to come to the conclusion that Scheduled Tribe “Gond Gowari”
was extinct prior to 1911. The High Court summoned all the certificates
and there was no finding that certificates were fake or persons who
were given certificates are non-existent. The High Court erred in coming
to the conclusion that “Gond Gowari” Tribe was extinct prior to 1911.
We, thus, conclude that even on the basis of materials which were brought
before the High Court no conclusion could have been drawn that “Gond
Gowari” Tribe was extinct prior to 1911.
82. We, thus, answer Question Nos.3 and 4 in the following manner:
ANSWER NO. 3
The High Court could not have entered into the
issue that
“Gond Gowari” which was Scheduled Tribe mentioned in
Constitution (Scheduled Tribes) Order, 1950 as amended upto 1976
is no more in existence and became extinct before 1911.
ANSWER NO. 4
The conclusion of the High Court in the impugned judgment
that “Gond Gowari” Tribe had been extinct before 1911 is not
supported by the materials which were on record before the High
Court.
QUESTION NO. 5 & 6
Both the questions being interconnected are taken together.
83. The caste ‘Gowari’ and ‘Gond Gowari’ are two distinct and
separate castes. We have extracted the description of ‘Gowari’ and
‘Gond Gowari’ given by Russell and Hiralal in the celebrated book, ‘The
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Tribes and Castes of Central Provinces of India’. Russel and Hiralal
have separately dealt with ‘Gowari’ and ‘Gond Gowari’ and have
categorically stated that ‘Gond Gowari’ have been treated as distinct
castes from ‘Gowari’. We may also refer to the book published by
Anthropological Survey of India, People of India, National Series Volume
III on “The Scheduled Tribes’, where ‘Gond Gowari’ have been described
in following words: -
“GOND, GOWARI They are a community of cattle herders who
have been referred to by Russell and Hiralal (1916) as the Gond-
Gowari and described as a small hybrid caste formed by an alliance
between the Gonds and Gowaris. They have been enlisted as
Gowari, a subgroup of the Gond in the Government of India list
for scheduled tribes. Our findings, however, reveal that they are a
discrete community and not a subgroup of any other tribe. They
are distributed in the Bhandara, Amravati and Garhchiroli districts
of Maharashtra and in the Balaghat and Sioni districts of Madhya
Pradesh. Marathi is spoken for both inter-and intra-group
communication. The Devanagari script is used. The Gowari are
short and medium-statured people with a dark complexion. The
main diet is rice, jowar and wheat, local pulses and seasonal
vegetables. They are non-vegetarians but do not eat beef.”
84. The ‘Gowari’ which is another backward community have
not been included in the list of Scheduled Tribes in the above book.
85.
We have already referred to the Enquiry Report by the Tribal
Development Department dated 12.05.2006. The Enquiry Report states
following: -
“With connection of knowing the culture, customs and traditions
of Gowari caste and Gowari Tribe, visits were made to aforesaid
villages and during these visits village information sheets were
given to villagers to be filled by them; also discussions made with
them and their statements were recorded. Also information was
gathered from the rest of the villagers who did not belong to either
of these two communities about their knowledge of these two
communities. From this information it has transpired that Gond
Gowari tribe is a sub-tribe of Gond Tribe and that there is traditional
intermixing of food and marital ties (roti-beti relationship) between
these communities and there are common cultural customs and
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traditions between them. However, having collected the information
about Gowari Caste it has transpired that it has a separate existence
and its culture, customs and traditions do not match with culture
customs and traditions of Gond or Gond Gowari Tribe which are
totally different.”
86. We have further noticed the Census of 1891 and 1901 which
have been referred by the High Court. The population of ‘Gowari’ has
been shown separately from the population of ‘Gond Gowari’. We have
also noticed the ratio of the Constitution Bench judgment of this Court in
Basavalingappa and Bhaiya lal as well as Milind. The High Court
could not have undertaken the enquiry to declare the caste which is not
included in the Scheduled Tribes Order, 1950 as a Scheduled Tribe. The
High Court could not have granted a declaration that the caste ‘Gowari’
is ‘Gond Gowari’ which is referred to in Item 28 of Entry 18 of
Constitutional Scheduled Tribes Order, 1950 amended as on date.
87. The High Court’s view that ‘Gond Gowari’ is not a sub-tribe
of ‘Gond’, hence, its validity cannot be tested on the basis of the affinity
test specified in the Government Order dated 24.04.1985 is also not
correct. The report of the first Backward Commission (1955) by which
recommendation was made to add ‘Gowari’ as a sub-tribe of ‘Gond’
was on the basis of study and research by the Backward Commission
which cannot be brushed aside.
88. We have also noticed the authoritative books on Tribes in
Central
India that ‘Gond Gowari’ is a sub-tribe of ‘Gond’. In the
Government Resolution dated 29.04.1985 comparative chart was annexed
where general information regarding Scheduled Tribes and non-Scheduled
Tribes i.e. ‘Gond Gowari’ and ‘Gowari’ have been given. The Government
Resolution also mentioned that ‘Gond Gowari’ is also a small sub-tribe
of ‘Gond’ tribe.
89. Shri Rohtagi submits that it has been held by this Court that
with regard to entries of Scheduled Tribes in Entry 18, all entries be
treated to be separate caste and it is not necessary to prove any affinity
with ‘Gond’. He submits that in the Entry 18, the word “including” was
deleted by Scheduled Caste and Scheduled Tribes Order Amendment
Act, 1976, the effect of which was that all entries of caste in Entry 18
became independent to ‘Gond’ and no affinity is to be proved by any
community from ‘Gond’. He submits that ‘Gowari’ to claim the benefit
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of the Scheduled Tribe need not prove any affinity with ‘Gond’. He
submits that the High Court has rightly undertaked the exercise to ignore
a non-existent tribe and to extend the benefit of the Scheduled Tribe.
Shri Rohtagi has placed reliance on judgment of this Court in State of
Maharashtra versus Mana Adim Jamat Mandal, (2006) 4 SCC
98. In the above case, two questions were raised which have been
noticed in the paragraph 1 of the judgment which is to the following
effect: -
“1. What appears to be a perpetual controversy with regard to
the Scheduled Tribe status has again engaged the attention of this
Court for a considerable time. Two questions are raised before
us:
1. Whether the “Mana” community in the State of Maharashtra
is a sub-tribe of “Gond” and is a Scheduled Tribe or not?
2. Whether a two-Judge Bench decision of this Court in Dina
v. Narayan Singh (for the sake of brevity “Dina I”) and the
decision rendered by another two-Judge Bench of this Court
in Dadaji v. Sukhdeobabu (for the sake of brevity “Dina
II”) are overruled by a Constitution bench of this Court in
State of Maharashtra v. Milind?”
90. The caste ‘Mana’ was also one of the castes which was
included in the Entry 18. By the Government Resolution dated 24.04.1985,
it was directed that ‘Mana’ community be not treated as Scheduled
Tribe unless they establish relationship or affinity with ‘Gond’ which
Government Resolution was also under challenge
in the above case.
91. This Court in the above judgment noticed the deletion of word
“including” in Entry 18 and came to the conclusion that Mana is not a
sub-tribe of ‘Gond’. Following was laid down in paragraph 30: -
“30. The common pattern found in most of the group entries is
that there is a punctuation mark comma (,) between one entry
and another entry in the group signifying that each one of them is
deemed to be a separate Scheduled Tribe by itself. In the present
case, Entry 18 of the Schedule clearly signifies that each of the
tribes mentioned therein is deemed to be a separate tribe by itself
and not a sub-tribe of “Gond”. “Gond” is a Schedule Tribe, it is
not disputed. As already noticed that “Gond” including Arakh or
Arrakh, etc. found in Entry 12 of the Amendment Act 63 of 1956
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has been done away with by the Amendment Act of 1976. In
Entry 18 of the Second Schedule of the Amendment Act of 1976
the word “including” was deliberately omitted, which signifies that
each one of the tribes specified in Entry 18 is deemed to be a
separate tribe by itself. Therefore, “Mana” is not a sub-tribe of
“Gond” but a separate tribe by itself and is a Schedule Tribe.”
92. What was laid down by this Court with regard to ‘Mana’
which was also a tribe included in Entry 18 is not applicable with regard
to Entry ‘Gond Gowari’. With the ‘Gowari’ word ‘Gond’ is prefixed.
The expression ‘Gond Gowari’ clearly expresses that the community
‘Gond Gowari’ has to do with tribe ‘Gond’ The community ‘Mana’ has
no such indication and insofar as ‘Gond Gowari’ is concerned we are
clear in our view that ‘Gond Gowari’ is a community which has affinity
with ‘Gond’ and is sub-tribe of ‘Gond’. The entry of ‘Gond Gowari’ in
Scheduled Tribes Order 1950 was as a sub-tribe of ‘Gond’ which is
clear from a report of the Backward Classes Commission, 1955. When
the inclusion of the entry ‘Gond Gowari’ was as (sub-tribe of Gond), its
affinity with ‘Gond’ cannot be ignored on any basis.
93. The judgment of this Court in State of Maharashtra versus
Mana Adim Jamat Mandal (Supra), cannot be read as an authority to
hold that ‘Gond Gowari’ has no affinity with ‘Gond’. The judgment of
this Court in State of Maharashtra versus Mana Adim Jamat Mandal
(supra) is solely based on deletion
of word “including” in Entry 18. For
the purpose of this case, we need not delve any further as to what is the
intendment of Parliament in deleting the word “including” and by deletion
of word “including”, all tribes included in common group i.e. Entry 18
shall be treated separate and has nothing to do with ‘Gond’.
94. We entertain our own doubts about the correctness of the
ratio of judgment in the State of Maharashtra versus Mana Adim
Jamat Mandal with regard to a group entry. As per Article 342(1),
tribes or tribal communities or parts or groups within tribes or tribal
communities shall for the purposes of the Constitution be deemed to be
Scheduled Tribes. There has to be some purposes for joining number of
tribes together in one entry, but as observed above in case with regard to
‘Gond Gowari’ the affinity is more than apparent with ‘Gond’ and the
judgment of this Court in State of Maharashtra versus Mana Adim
Jamat Mandal (Supra) cannot be read as an authority to hold that
‘Gond Gowari’ is not a sub-tribe of ‘Gond’ and no affinity is required to
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be established with Gond by the tribe ‘Gond Gowari’. We thus do not
find any infirmity in Government Resolution dated 24.04.2984 insofar as
Scheduled Tribe ‘Gond Gowari’ is concerned.
95. In view of the foregoing discussion we answer question No.5
and 6 in following manner: -
ANSWER NO. 5
The caste ‘Gowari’ is not the same as ‘Gond Gowari’. The
High Court could not have granted declaration of caste ‘Gowari’
as ‘Gond Gowari’.
ANSWER NO. 6
The High Court is not correct in its view that ‘Gond Gowari’
shown as item No.28 in Entry 18 of Scheduled Tribes Order,
1950, is not a sub-tribe of ‘Gond’. The validity of caste
certificate to ‘Gond Gowari’ has to be tested on the basis of
affinity test as specified in the Government Resolution dated
24.04.1985.
96. In view of the foregoing discussion, none of the reasons given
by the High Court in paragraph 74 of the judgment are sustainable to
hold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of ‘Gond
Gowari’. The entire basis of the judgment of the High Court that tribe
‘Gond Gowari’ was completely extinct before 1911 having been found
to be flawed, the entire basis of judgment is knocked out.
97. Much emphasis has been given by the learned counsel for the
respondents that the State Government having recommended in 1967
and 1979 to include ‘Gowari’ in the list of Scheduled Tribes, it could not
have changed its view subsequently. One of the reasons given by the
High
Court in paragraph 74(2) is as follows: -
“74(2). We accept the view taken by the Central and the State
Government that - (a) Gowari community is included in the
Scheduled Tribes Order of the State as ‘Gond Gowari’ and it is
wrongly projected as a sub-tribe of Gond, (b) Gowari is an
independent tribe and not a sub-tribe of Gond, and (c) it is the
Gowari community which will have to be issued the certificate as
Gond Gowari.”
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98. When the State has expressly after 1979 has written to the
Government of India on 06.11.1981 that ‘Gowari’ community does not
fulfill the criteria of Scheduled Tribe and thereafter after 1984, several
studies were conducted by Tribal department in State of Maharashtra
including report dated 12.05.2006 which reaffirms that ‘Gond Gowari’
and ‘Gowari’ are distinct community and ‘Gowari’ is not Scheduled Tribe,
there was no error in taking stand before the High Court in the writ
petition that ‘Gowari’ are not entitled for Scheduled Tribe Certificate.
We fail to understand as to how the High Court has observed that it
accepts the view of the Central and State Government that ‘Gowari’
community be included in the Scheduled Tribe Order.
99. Learned Counsel for the petitioner has also relied on the report
dated 29.10.2020 submitted by Tata Institute of Social Sciences, Mumbai
on “Socio Anthropological study of ‘Gowari’ community of Maharashtra”
in which report, the conclusion has been recorded that there are major
differences between ‘Gond Gowari’ and ‘Gowari’. It is relevant to notice
that the High Court has noticed the decision of the State Government to
entrust the study to Tata Institute of Social Sciences which facts have
been noticed in paragraph 86 of the judgment. Although the report dated
29.10.2020 which has been brought on the record do reaffirms the stand
taken by the State that both the communities are distinct and different
and ‘Gowari’ are not
Scheduled Tribe but we need not base our judgment
on such report benefit of which report was not available to the High
Court while deciding the writ petition.
100. Now, we come to the last submission of Shri Rohtagi. Shri
Rohtagi submits that Scheduled Tribe Certificate to the members of
‘Gowari’ community was granted after the judgment of the High Court
dated 14.08.2018, on the basis of which certificates large number of
students have taken admission in different educational institutions taking
benefit of Scheduled Tribes as well as employment at various places as
Scheduled Tribes candidates which need to be protected by this Court.
After the declaration granted by the High Court, the authorities proceeded
to grant Scheduled Tribe certificate to the ‘Gowari’ community and it is
true that on strength of such Scheduled Tribe certificate, several students
must have taken admission in different courses as Scheduled Tribe
candidate and persons have also secured employment as Scheduled Tribe
candidate. The State of Maharashtra has belatedly filed these appeals
which delay in filing these appeals have already been condoned by us
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and there being no interim orders in these appeals staying the effect of
judgment of the High Court, grant of Scheduled Tribe certificate was
natural consequence of the judgment of High Court.
101. We in the ends of justice directs that the admission taken and
employment secured by the members of ‘Gowari’ community on the
basis of Scheduled Tribe certificate granted to them between 14.08.2018
till date shall not be affected by this judgment and they shall be allowed
to retain the benefit of Scheduled Tribe obtained by them. However, the
above Scheduled Tribe candidates shall not be entitled to any further
benefit as Scheduled Tribe except their initial admission in different
courses or employment at different places on the strength of Scheduled
Tribe certificate given to the ‘Gowari’ Community obtained between
14.08.2018 and this day.
102. In view of the foregoing discussions, we are of the view that
the High Court erred in declaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled
Tribes referred to in item 28 in Entry 18.
103. In result, we allow the appeals, set aside the impugned
judgment of the High Court dated 14.08.2018 and dismiss the writ
petitions. Parties shall bear their own costs.
Divya Pandey
Appeals allowed.