VINA Y PRAKASH AND ORS.

A v.

STATE OF BIHAR & ORS.

FEBRUARY 17, 1997

[K. RAMASWAMY AND G.T. NANAVATI, JJ,] B

Constitution of India, 1950:

Articles 342(1) and 366(25)--Scheduled Tribe-Claim for status of-Presidential Notification containing "Lohara" as Scheduled C

Trib~"Lohars of Bihar, a backward community, claiming the status of Scheduled Tribes on the basis of Scheduled Castes and Scheduled Tribes orders (Amendment) Act, 1976-ln English version of the Presidential Notification, Lo/tars was not shown as a Scheduled Trib~But in Hindi version it found place in the Notification-Writ petition of appellants dis- D missed by High Court-Held Presidential Notification was unequivocal, and, there/ ore, Lohars were not Scheduled Tribe within the meaning of the definition "Scheduled Tribes" under Article 366(25) read with the Notification issued by the President of India under Article 342( 1)--Since the entry gained was based on wrong translation made by the Department and order was obtained on that basis, the same cannot be made the basis of the status of E Scheduled Trib~Appellants were not entitled to the status of Scheduled Tribe from the inception-There is no illegality in the decision of High Court warranting interferenc~Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

F Nityanand Shamta v. State of Bihar, [1996] 3 SCC 576, relied on.

B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR 316; Srish Kumar Choudhury v. State of Tripura, [1990] Supp. SCC 220; Pa/ghat 1handan Sanmdhaya Samrakshana Samiti v. State of Kerala, [1994] 1 SCC 359; Parasram v. Shivchand, [1969] 1 SCC 20 and Shambhoo Nath v. Union G of India & Anr., C.A. No. 4631/90 decided on 15.9.1990, referred to.

State of Kamataka v. Kumar G.N. Ambiga, [1995] Supp. 2 SCC 560 and Government of Andhra Pradesh v. Bala Musalaiah, [1995] 1 SCC 184, held inapplicable.

A CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) No. 2714 of 1997.

From the Judgment and Order dated 10.10.96 of the Patna High Court in L.P.A. No. 831of1996.

B Rajiv Dhawan and Navin Prakash for the Petitioners.

The following Order of the Court was delivered :

This is the fourth attempt made by the Lohar Community to get into the status of Lohara. lohars are, admittedly, blacksmiths, a backward C community in the State of Bihar. Lohars are Scheduled Tribes in the State of Bihar.

This special leave petition arises from the judgment and order of the ,..Patna High Court, made on October 10, 1996 in LP A No. 831/96. The D President of India, in exercise of the power under Article 342(1) of the Constitution read with Article 366(25), notified the Scheduled Tribes for the State of Bihar thus: "such. tribe or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Articie 342 to be scheduled Tribes for the purposes of this Constitution," Thereafter, the Scheduled Castes and Scheduled Tribes Orders (Amend- E ment) Act, 1976 came to be made adding to or deleting from the lists certain castes. In Entry 20 of the Entries in relation to the State of Bihar, Lohara was wrongly translated as Lohra and the same was published in the State Gazette notification. That came to be rectified by notification published by the government on January 6, 1995. In the meanwhile, there was p spate of litigation after the 1976 Amendment Act and the Lohars - a backward class - as stated earlier, claimed the status of Scheduled Tribes.

When the said claims for social status of Scheduled Tribes came to be rejected, the petitioner' approached the courts. While the desired social status certificates were granted by the High Court in some cases, the same was refused in others. When the matter had come up for the first time, G before a Bench of three Judges of this Court, to which one of us (K.

Ramaswamy, J.) was a member, in Shambhoo Nath v. Union of India & Anr. C.A. No. 4631/90 decided On september 15, 1990, it was wrongly conceded by the counsel appearing for the Union of India that they were entitled to the status of scheduled Tribes. Ort that premis<:, the order of H the Administrative Tribunal was set aside and direction was given to issue

VINAYPRAKASHv. STATE 99

the certificate of Scheduled Tribes. Since the social status certificates were A not issued despite direction in this regard, a writ petition under Article 32 was again filed in this Court seeking a writ of mandamus directing all the authorities in the State to issue certificates in the light of the judgment passed by this Court in Shambhoo Nath's case. That writ petition was also dismissed by a Bench of three Judges, to which one us (K. Ramaswamy, B J.) was a member.

Later, the matter was considered in extenso in Nityanand Shanna v.

State of Bihar, [1996] 3 SCC 576 wherein, considering the entire history of the Lohars and Loharas, this Court has held in paragraphs 10, 11 and 12 that Lohars being backward class, they cannot claim the status as Lohara, C which is a Scheduled Tribe and, therefore, the entitlemet on that 'basis is unconstitutional and it was a retrograde step to get into the status of Scheduled Tribes to snatch the benefits made for the Scheduled Tribes. It was further held that all those judgments which had taken contra view by the.High Court are not good law. Consequently, they filed yet another writ D petition in the High Court claiming, on the basis of the orders issued by . competent authorities, the status of Lohara. In the impugned order, the Division Bench has held that in the light of the law laid by this Court in Nityanand Shanna's case, it was not open to the High Court to go into that question and accordingly it dismissed the writ petition. The LPA filed in that behalf also came to be dismissed. Thus, this special leave petition.

Shri Rajiv Dhawan, learned senior counsel appearing for the petitioners, has contended that this Court in B. Basavalingappa v. D.

Munichinnappa, [1965] 1 SCR 316 at 322), Srish Kumar Choudhury v. State of Tripura, [1990] Supp. SCC 220 para 12 and para 20 and Palghat Thandan p Samudhava Samrakshana Samiti v. State of Kera/a, (1994] 1 SCC 359 at 364, paras 14 and 19 had considered and held that it would not be open to the Court to enter into an enquiry as to whether a particular caste or tribe is Scheduled Tribe for finding out whether they are entitled to the benefit of the status conferred by the notification issued by the Presidnt of India under Articles 341 and 342 of the Constitution, as the case may be; G . therefore, the view of this Court mentioned_ in Nityanand Shamia's case is per incurium. We find no force in the contention. We make it clear that in the English version of the Presidential notification Lohars is not shown as a Scheduled. Tribe. But in the translated Hindi version, it found place in the notification. It was a wrong translation this aspect was examined in H

A detail in Nityanand Shanna's case.

It is seen that in Basavalingappa's case the question was whether 'Bhovi' caste was Scheduled Caste within the meaning of Presidential notification for the purpose of finding whether the respondent therein was a Scheduled Caste candidate for the purpose of contesting the elections as a reserved candidate. Admittedly, preceding the notification, Bhovi caste was a Scheduled Caste and under those circumstances, this Court had gone into that question. This Court had referred to a two Judge Bench decision in Parasram v. Shivchand, [1969] 1 SCC 20 and Srish Kumar Choudha1y's case wherein this Court had held that it would not be open to the Court C to go into the question was whether 'mochi' was included in the notified caste of chamar. Equally, in Pa/ghat's case (supra) the question was whether Thandans or Ezhavas in Malabar District, which was part of the Madras Province, were of Scheduled Castes or Backward Classes and in view of the admissions made by the Government in paragraphs 14 and 19, D this Court had held foat it was not open to the Government to go into that question until it was suitably modified by a Presidential notification. All these cases have been considered in one judgment or other by this Court in particular in Nityanand Shanna's case.

The question is : whether a person, who is not a Scheduled Tribe E under the Presidential notification, is entitled to get the status of a Scheduled Tribe? It is already held that though the English version of the Presidential notification clearly mentions "Lohara", there was no mention of Lohar. But while translating it, Lohars were also wrongly included as

was pointed out by this Court in Nitya11a11d Shanna's case. It would, thus be seen that the presidential notification was unequivocal and, therefore, Lohars were not Scheduled Tribes within the meaning of the definition 'Scheduled Tribes' under Article 366(25) read with the notification issued by the President of India under Article 342(1) of the Constitution and, therefore, this Court had pointed out that they are not entitled to the status of Scheduled Tribes. It is clear that if a Presidential notification does contain any specific class or tribe or a part thereof, then, as held by this Court, it would be for the Parliament to make necessary amendments in Article 342(2) of the Constitution and it is not for the executive Government but for the Court to interpret the rules artd construe as to whether a particular caste or a tribe 'or a part or section th ere of is entitled to claim H the status of Scheduled Tribes. Under these circumstances, we think that

VINAY PRAKASH v. STATE 101

the decision in Nityanand Shanna's case does not require any reconsidera- A tion; so also other decisions referred to therein except the Pa/ghat's case, which was later considered in another judgment. Under these circumstances, we do not think that there is any illegality in the decision rendered by the Division Bench of the High Court warranting interference.

It is then contended that the doctrine of prospective application of B the judgment in Nityanand Sharma's case may be applied. In support thereof, learned counsel relied upon two judgments of this Court in State of Karnataka v. Kumar G.N. Ambiga, [1995] Supp. 2 SCC 560 and Government of Andhra Pradesh v. Bala Musa/aiah, (1995] 1 SCC 184. We are afraid, we cannot accede to the contention of the learned counsel. This is C a case where the respondents were not entitled; from the inception, to the social status of Scheduled Tribes. Since the entry gained by them was based on wrong translation made by the Department in the notification and the order was obtained on that basis, the same cannot be made the basis of grant of the status of Scheduled Tribes. We cannot allow perpetratration of the illegality since under the Constitution they-are not at all entitled to D the status of Scheduled Tribes, Under these circumstances, the above two judgments have no application to the facts in this. case.

The Special Leave Petition is accordingly dismissed.

Petition dismissed.