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PETITIONER: NITYANAND SHARMA & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       02/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (3) 576        JT 1996 (2)   117  1996 SCALE  (1)743

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Ramaswamy, J.      Leave granted.      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.      The appellants,  Assistant Teachers  in the  service of the State  of Bihar  belonging to  Lohar  caste,claimed  the status as  Scheduled Tribe  under the  Act and the order and sought promotion on that basis in the quota reserved for the Scheduled Tribes.  When the  request was not acceded to, the appellants had  filed CWJC  No.10593/92. The  High Court  by impugned order dated August 12, 1993, dismissed the same.      Appellants’ case is founded on two-fold basis, firstly, Lohar community  was included  in the Schedule under the Act as reflected  in the  Hindi version  of the  order and  that thereby they  are entitled  to be  recognized  as  Scheduled Tribes. Secondly,  it is  contended that  when similar claim was relied  on by  one Shambhu Nath and was rejected by CAT, this Court  in Shambhu Nath vs. State of Bihar (C.A. No.4631 of 1990)  by order  dated September  15, l990  had held that Lohar community is a Scheduled Tribe under the Act. This was followed in  another  SLP  @  CWJC  No.1034  of  1991  dated September 21,  1992. The Division Bench of the High Court in the above  writ petition  held Lohar  community as Scheduled Tribe. This  was upheld  by this  Court. In  the latter case also it  had concluded  that  Lohar  is  a  Scheduled  Tribe community and  that, therefore,  it is  entitled to the same status. In  yet another  writ petition  CWJC  No.3390/92  by order dated  September 20,  1993, another  Division Bench of that High  Court also  held that  Lohars belong tc Scheduled

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Tribes. It  is contended  that the  dismissal  of  the  writ petition by the High Court, therefore, is wrong in law. The notification in  Hindi version  must be  enforced  as  their constitutional right is grossly violated.      When the  matter  had  come  up  on  Monday,  the  15th January, 1996  alongwith SLP  (C) Nos.23681-783  of 1995 and another one,  the counsel stated that the other case was not pressed and  thus was dismissed. In the above SLP No.1569 of 1994, since  notice was  issued by one of us (Pattanaik, j.) who was  a member of the High Court Bench, as the then Chief Justice of  that High  Court, the counsel for the respondent sought for  posting of  the matter  before appropriate Bench and thus  the matter  was posted  before a  Bench  of  which Pattanaik, J  was not  a member.  At the  request of parties this case  was posted before the Bench of three Judges. Thus the matter  has come up before us. When the case was called, the counsel sought permission for withdrawing the S.L.P. and when it  was refused  the  counsel  argued  the  case.  Shri Dwivedi, the  learned counsel, contended, firstly, that when there is  a conflict  of decisions  between two  co-ordinate Division Benches  of the  High Court, the Division Bench, in this case,  should have referred the cases to a larger Bench and that,  therefore, the decision of the High Court was bad in law.  That controversy  may be relevant in that court but as far  as this Court is concerned, the case has to be dealt with on  merits. He  then contended that Lohar are Scheduled Tribes as  recognized by  other Division Benches of the High Court and that was  approved by this Court in Shambhu Nath’s case  and   another  case.   Therefore,  Lohars   now  stand recognized as  Scheduled Tribes.  The Division  Bench of the High Court in this case, therefore, was not right in holding that they  are not  Scheduled Tribes. He also contended that when the  Hindi version  of the  Schedule mentions  Lohar as Scheduled Tribes,  they are entitled to the declaration from the Court  and a  mandamus should  have been  issued to  the authorities to consider their status as Scheduled Tribes for the purpose of promotion as Head Masters.      Shri  B.B.   Singh,  learned  counsel  for  the  State, resisted the  contention.  He  contended  that  there  is  a consistent view  of the  State High  Court that  Lohars  are Blacksmiths-Other backward Classes (for short, ‘O.B.Cs.’) in the State  of Bihar.  They are not Scheduled Tribes. The Act mentions Lohara/Lohra  as a Scheduled Tribes; Lohar is not a Scheduled Tribe,  therefore, they  are not  entitled to  the status as Scheduled Tribe.  In West  Bengal, the  same  tribes,  i.e., Lohara/Lohra are  shown as  Scheduled Tribe  in the Schedule under the  Act both  in English  version and  Hindi version. English version  relating to  the Schedule  for Bihar though correctly reflects  these two  communities as  Tribes, Hindi version does  contain description  ‘Lohar’ but  it is only a wrong translation.  The Court  can take  judicial notice  of English  Version   and  have  it  correctly  interpreted  by treating Hindi  version as incorrect translation. Therefore, the High  Court rightly  did not  accept the  status of  the appellants as Scheduled Tribes.      In view  of the  respective contentions,  the  question that arises for consideration is: whether the Court can give declaration of  the social  status as  a  Tribe  or  declare Lohars as  Scheduled Tribes  in the  Act and the Schedule of the Act?  Clause (24)  of  Article  366  defines  "Scheduled Castes" and  clause (25)  of Article  366 defines "Scheduled Tribes". The latter 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

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Tribes For  the Purposes  of  this  Constitution"  (Emphasis supplied).  Article   341(1)  empowers   the  President,  in consultation with  the Governor  of the  concerned State, to specify Scheduled  Castes by  public notification.  Equally, 342(1) empowers  the President "with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification to specify the Tribes  or Tribal  communities or  parts  of  or  groups within tribes  or tribal  communities which  shall  for  the purposes of  the Constitution  be  deemed  to  be  Scheduled Tribes in  relation to that State or Union territory, as the case may  be". Article  342(2) empowers  the Parliament,  by law, to  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. In other words, it is the  constitutional   mandate  that  the  tribes  or  tribal communities or  parts of  or groups  within such  tribes  or tribal  communities   specified  by   the  President,  after consultation with  the Governor  in the public notification, will be  Scheduled Tribes  subject to  the law  made by  the Parliament alone,which  may, by  law, include  in or exclude from  the   list  of   Scheduled  Tribes  specified  by  the President.  Thereafter,   it  cannot  be  varied  except  by Parliament. The specification is for the purpose of the Constitution.      Constitutional rights  given in Part III and Part IV of the Constitution  are relating to election to the Parliament or the  State Legislature.  Section 2(f)  of the Act defines "Scheduled Tribe Order". It means "the Constitution (Andaman & Nicobar  Islands) Scheduled  Tribe Order, 1959 made by the President under  Article 342 of the Constitution". Section 3 deals with  amendment of  the  Scheduled  Castes  Order  and Section 4 deals with amendment of Scheduled Tribe Order. The Scheduled Tribe  Orders are amended in the manner and to the extent specified  in the  Second  Schedule.  First  Schedule relates to  Scheduled Castes  and Second Schedule relates to Scheduled Tribes.      Scheduled Tribe  specified in  the Order is in relation to a  State or  to a  District or other territorial division type of  and shall be construed as a reference to the State, District or  other territorial  division in  that particular State as  constituted on  the first  day of  May  1976.  The substituted schedule  in  relation  to  Bihar  is  contained in Part  III. It consists of 30 Scheduled Tribes. Item No.22 specifies (1)  Lohara/Lohra. Similarly  in relation  to West Bengal in  Part XVI  Item No.24  repeats  the  came  tribes, namely, (1)  Lohara/Lohra to  be Scheduled  Tribes. In Hindi version, as  placed before us, relating to the State of West Bengal, is  found the same specification. But with regard to Bihar State,  Hindi version  contains in  place  of  Lohara, Lohar. The silibet ‘a’ is omitted. The title to the Schedule of  Hindi   version  itself   clearly  mentions  "translated version". As stated earlier, in English version, there is no mention of  Lohar and  Lohara/Lohra only  are the  specified Scheduled Tribes.      In ‘Tribes  and Castes  of Bengal’  written by renowned sociologist,  H.S.   Hisley  in  Volume  II,  is  found  the description of  Lohar as  Blacksmith of  Bihar, Chota Nagpur and West Bengal. He mentions therein thus:      "Lohar, as  sub-castes of  Barhi in      Bihar, only work in iron. They are,

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    however, distinct  from, and do not      inter marry  with the  Lohra caste.      The latter  are probably  Dravidian      descent, while  former appear to be      an occupational group.      Lohar,  a   synonym  for  Kamar  in      Behar; a  mul  or  section  of  the      Naomulia or  Majraut  sub-caste  of      Goalas in Behar; a section of Kamis      in Darjeeling."      So far  as "Lohars  of Behar" are concerned, the author says:-      "In  Behar   the  caste   works  as      blacksmiths  and  carpenters  while      many  have  taken  to  cultivation.      They buy their material in the form      of  pigs  or  bars  of  iron.  Iron      smelting is  confined to the Lohars      of Chota Nagpurs and is supposed to      be a  much less respectable form of      industry than working up iron which      other people  have smelted.  In the      smelted. In  the  Santhal  Parganas      Lohars often  cultivate  themselves      while the  women of  the  household      labour at the....."      The other sub-castes of ’Lohra’ and ’Loharas’ have been stated by the author as follows:-      "Lohara, a  sept of Mundas in Chota      Nagpur. Lohar  Agaria, a  sub-tribe      of   Agarias   in   Chota   Nagpur.      Loharatengi, section  of Rajwars in      Western, Bengal.  Loharbans, iron a      totemistic  sept   of   Chicks;   a      section of Gasis in Chota Nagpur.      Lohra,  a  synonym  for  Asura  and      Lohar.      Lohra, Asur,  a sub-tribe of Asuras      in Chota Nagpur."      ‘Lohra’ or ‘Loharas’ are thus different from ‘Lohar’ in Bihar as  ’Lohars’, as  noticed hereinbefore are ranked with ’Koiris’ and  ’Kurmis’  whereas  ’Lohra’  or  ’Loharas’  are merely sub-castes,  a sept of Mundas in Chota Nagpur or sub- tribes of Asurs who are Scheduled Tribes.      According to Hisley, Lohars are large and heterogeneous aggregate comprising members of the several different tribes and castes.  who in  different parts  of the country took up the profession  of working  in iron.  Of  the  various  sub- castes... the  Kanaujia claim to be the highest in rank, and they alone  have a  well marked  set of  exogamous sections. They regard  Vishwani  as  their  legendary  ancestors,  and worship him  as the  trolary  deity  of  their  cracts.  The Magahaiya seems  to be  the indigenous  Lohars of  Bihar, or opposed to  the Kanaujia  and Motiniya,  who profess to have come in turn from the North-West Provinces. The Kamia Lohars found in  Champaran  have  immigrated  from  Nepal  and  are regarded  as  ceremonially  unclean...  The  Hanhhum  Lohars acknowledge three  sub-caste-Lohar Manjhi,  Danda Manjhi and Begdi Lohar, names which suggest a connection with the Begdi castes.  Lastly,  in  Lohardagga  we  have  the  Sed-Lohars, claiming to  be immigrant Hindus; the Manjha Turiyas who may well be a branch of the Turi caste; and the Munda Lohars who are certainly  Mundas. In  Andhra Pradesh,  Blacksmiths  are known as  Kammara, who  work on  preparing iron articles for agricultural operations and Kamsalis prepare gold ornaments.

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They are  O.B.Cs. Their  names are  different from region to region. It  would thus be clear that Lohars are Blacksmiths, while Loharas/Lohra are Scheduled Tribes.      The  question   then  is:   whether  Lohars   could  be considered by  the Court  as synonyms  of Loharas or Lohras? This question is no longer res integra. In Bhaiyalal v. Hari Kishan Singh  [(1965) 2  SCR 877].  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. Basavalinqappa vs. D. Munichinnappa [(1965) 1 SCR 316].      In Dina  vs. Nerayan  Singh, [(1968)  38 ELR 212], Dina declared in  his nomination paper, as being a member of Gond (Mana) caste,  a Scheduled  Tribe in  Godchiroli  Taluka  of Chand District  in Maharashtra  State. Evidence  was led  to show that  he was  Maratha Mana. Therefore, he was not Gond. The Court  fond that  the customs, manners, forms of worship and dress  of the  members of  Mana community  are different from customs, manners, forms or worship and dress of Gonds. It was held that Manas are not Gonds and that, therefore, he was not  a Scheduled  Tribe  under  the  Presidential  Order entitled to get elected as a member of the Scheduled Tribes. In Srish  Kumar Choudhury  vs. State of Tripura & Ors. [1990 Supp. SCC  220] a  Bench of 3 learned judges was called upon to consider  whether Laskar community in State of Tripura is a  Scheduled  Tribe.  In  a  representative  petition  under Article 226, they sought declaration that earlier to the Act and the  Order, they  were recognised as Scheduled Tribes by rulers   of    Tripura   State    and   that    they    were Tripura/Tripuri/Trippera Laskar  and that,  therefore,  they were entitled  to the  status as  Scheduled Tribes. The High Court dismissed  the writ  petition. On  appeal, this  Court held that  though evidence  may be  admissible to verify the entries in  the Presidential  Order to  find  a  caste/tribe included in a particular tribe or caste, tribal communities, the admissibility  of the  evidence is  confined within  the limitations enacted  in the  order. It is not, however, open to the  Court to  make any  addition or subtraction from the Presidential  Order.  Laskars,  therefore,  as  a  community cannot be  included as  Scheduled Tribes. In Kumnari Madhuri Patel& Ors  vs. Addl. ommissioner, Tribal Development & Ors. [(1994) 6  SCC 241],  a Bench of two Judges, to which one of us (K.  Ramaswamy, J.) was a member, had to consider whether Kolis, a  Backward Class in Maharashtra would be declared as Mahadeo Koli,  a Scheduled Tribe in Maharashtra. Despite the cultural  advancement,  the  genetic  traits  pass  on  from generation to  generation and  no one could escape or forget or get  them over.  The tribal  customs are peculiar to each tribe or  tribal communities  and are still being maintained and preserved. Their cultural advancement to some extent may have  modernized  and  progressed  but  they  would  not  be oblivious or  ignorant of  their customary and cultural past

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to  establish   their  affinity   to  the  membership  of  a particular tribe.  The tribe or tribal communities, parts of or groups thereof have their peculiar traits. It was further held that  Presidential declaration  subject to amendment by Parliament is  conclusive. No  addition  to  it  by  way  of declaration of  castes, tribes  or sub-caste,  parts  of  or groups of  tribes or  tribal community is permissible. After an elaborate  survey of  the constitutional  purpose and the relative caste  structures, customs,  marriages etc.  it was held that  Kolis are  Backward Class  and Mahadeo  Koli  are Scheduled Tribes.  The appellants  therein being  OBCs  were held not entitled to status as Scheduled Tribes.      It is  for the  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  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  concerned Schedule, 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.      In Mrs.  Valsamma Paul  vs. Cochin  University Ors. (JT 1996 (1)  SC 57),  a Bench  to which two of us (K, Ramaswamy and B.L.  Hansaria, JJ.)  were  members  have  surveyed  the retrograde   attempts   successively   made   by   different communities in the country to wear the mask of status either of  Scheduled   Castes  or   Scheduled  Tribes   to   secure constitutional benefits  of reservations  and other economic empowerments,  intended   for  the   Scheduled  Castes   and Scheduled Tribes  meant  for  the  latter  to  accord  their economic, social and cultural advancement. In Andhra Pradesh High Court  decisions noted  in the  judgment of  the Bench, Jangama, backward class sought to be recognised as Scheduled Caste. Equally  Holva tried  to be Holuva, i.e., from O.B.C. to ST.  Those attempts were judicially negated. This case is yet another instance, where Other Backward Class  mass seeks to get the status of the Scheduled Tribe. It is a retrograde step to  corner the  benefits intended for Scheduled Tribes. In Shambhu  Nath’s case  (supra) this  Court, therefore, did not intend  to lay  down any  law that  Lohar are  Scheduled Tribes. Unfortunately  due to  concession by the counsel for the counsel  for the  Union, without  due verification  from English version,  this Court  accepted Hindi  version placed before the  Bench  and  held  that  they  were  included  as Scheduled Tribes.  There was an obvious mistake in accepting a mistaken  fact. Therefore,  this Court  preceded  on  that mistaken assumption  without verification  from the Act that Lohars are  included in Part III of Second Schedule relating to the State of Bihar. Therein this Court stated thus:      "In view  of the  accepted position      that Lohar community is included in      the Scheduled  Tribe from  the date      of the  amendment of  the  List  ln      1976  we  do  not  think  that  the      Tribunal was  justified in  holding      the view it has taken."

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    This Court,  Therefore. Proceeded  on  the  premise  as admitted by  the counsel  that Lohar was included in the Act as Lohars  in the  Second Schedule  as Scheduled  Tribe. The counsel wants us to read the earlier sentence, viz. "We have looked into  the record".  In view  of the factual quotation from the  Act and  the Second  Schedule, as extracted in the earlier part  or the  judgment.  the  effect  of  the  above sentence speaks  for itself  and seems to be otherwise. As a fact the  bench proceeded  on the basis or the concession of the Union counsel. It proved to be an obvious mistake and as a fact the translated Hindi copy was placed before the Court and  the   Court  proceeded   on  that   promise.  The  case establishes that  the Court  was missed by incorrect record. It proves  how wrong  it would be to proceed on the basis of statement by  counsel who do not take full responsibility to place  correct  record,  in  particular,  on  constitutional issues.      It is  seen that  in 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 "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.      Article 348(1)(b)  of the  Constitution  provides  that notwithstanding anything  in Part II (in Chapter II Articles 346 and  347 relate to regional languages) the authoritative text of all bills to be introduced and amendments thereto to be moved in either House of Parliament.....of all ordinances promulgated by  the President.......and  all orders,  rules, regulations and  bye laws  issued under  the Constitution or under any  law made  by the  Parliament,  shall  be  in  the English language.  By operation  of sub-article  (3) thereof with a non obstante clause, where the Legislature of a State has prescribed  any language other than the English language for use  in Bills  introduced in,  or Acts  passed  by,  the Legislature of the State or in Ordinances promulgated by the Governor of  the State  or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of  the same  in the  English language published under the  authority of  the Governor  of the  State in  the official Gazette  of that  State shall  be deemed  to be the authoritative text  thereof in  the English  language  under this article.  Therefore, the  Act and  the Schedule thereto are part of the Act, as enacted by the Parliament in English language. It  is the  authoritative test. When the Schedules were  translated   into  Hindi,   the   translator   wrongly translated Lohara as Lohar omitting the word ’a’ while Lohra is written as mentioned in English version. It is also clear when we  compare Part XYI of Second Schedule relating to the State of West Bengal, the word Lohar both in English as well as in the Hindu version was not mentioned . Court would take judicial notice  of Acts  of Parliament  and would interpret the Schedule  in the  light of  the English version being an authoritative text of the Act and the Second Schedule.      Accordingly, we  hold that  Lohars are  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 sone stray cases, there  is a consistent view of that Court that Lohars are not  Scheduled Tribes.  They are Blacksmiths. We approve

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the said view laying down the correct law.      We may  mention, before  parting with  the case, that a writ petition  under Article 32 was filed in this Court in a representative capacity by some of the students belonging to Lohar community  seeking admission  into Medical Colleges to direct the  District authorities  to give them social status certificate as  Scheduled Tribes.  This Court  dismissed the writ petition  holding that  no direction could be issued to authorities to act contrary to the Constitution and the laws and  that   the  writ  petition  was,  therefore,  held  not maintainable. This would give an insight into the consistent attempt by  Lohar community  to wear  the mask  of Scheduled Tribe status  and to  masquerade as  such  for  getting  the constitutional benefits meant for the poor tribes, which the President  in   consultation  with   the  Governor   or  the Parliament had  not granted  to  them  and  such  status  as Scheduled Tribe cannot be granted to O.B.Cs.      The  appeal,   therefore,  is   dismissed  with   costs throughout.