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CASE NO.: Appeal (civil)  5483 of 2000

PETITIONER: Prabhat Kumar Sharma                                     

RESPONDENT: Union Public Service Commission & Ors.           

DATE OF JUDGMENT: 19/10/2006

BENCH: ASHOK BHAN & MARKANDEY KATJU

JUDGMENT: J U D G M E N T With

Writ Petition (C) No.   173  of 2002  and  Writ Petition (C) No. 488 of 2000  

BHAN, J.

       This judgment shall dispose of Civil Appeal No. 5483 of  2000 and Writ Petition Nos. 173 of 2002 and 488 of 2000 filed  under Article 32 of the Constitution of India.   Point involved  in all these cases being the same, they are disposed of by a  common judgment.   

       The facts are taken from Civil Appeal No. 5483 of 2000.         This appeal has been filed by a member of "Lohar"  community from the State of Bihar.  "Lohars" are being treated  as Other Backward Classes whereas he claims to be a member  of Scheduled Tribes under the Scheduled Castes and  Scheduled Tribes Order.  The point in issues is concluded  against the appellant by a judgment of this Court in  Nityanand Sharma and Another Vs. State of Bihar and  Others, 1996 (3) SCC 576.  The appellant seeks to get the  judgment  in the case of Nityanand (supra)  referred to a larger  Bench by contending that the said judgment is wrong and  needs reconsideration.           Prabhat Kumar Sharma, the appellant herein, was a  candidate for the Civil Services Examinations held during the  years 1991, 1992, 1993 & 1994.  He claimed to belong to  "Lohar" community, which according to him was a Scheduled  Tribe in the State of Bihar.  While considering the candidature  of the appellant and while verifying his claim as belonging to  Scheduled Tribe in the State of Bihar, the Union Public Service  Commission prime facie came to the conclusion that the  "Lohar" community was not included in the list of Scheduled  Tribes for the State of Bihar issued by the Government of  India.  The Commission addressed a communication to the  Deputy Commissioner, Ranchi to ascertain if "Lohar"  community was recognized as a Scheduled Tribe in Bihar.  The  Deputy Commissioner in his reply indicated that "Lohar"  community in the Bihar was recognized as "Backward Class"  only and not as ’Schedule Tribe".  In the light of this, the  appellant was asked by the Commission to clarify the latest  position in respect of the community claim.           The appellant thereafter filed Writ Petition No. 2600 of  1992 in the High Court of Patna at Ranchi for a direction to

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the State Government to issue him a caste certificate as  ’Scheduled Tribe’ on his being a member of "Lohar"  community.  The Court directed the Deputy Commissioner,  Dhanbad to issue a provisional caste certificate describing the  appellant as "Lohar" belonging to the Scheduled Tribe with the  stipulation that the same shall be subject to the final result of  the writ petition pending in the High Court.     The Bench  issued an interim direction on 18.02.1993 directing the  Commission to permit the appellant to appear in the  examination provisionally as a member of the "Lohar"  community as a ’Scheduled Tribe’.   As per interim directions  issued by the High Court, the Commission treated the  appellant along with 4 other candidates similarly placed as  belonging to Scheduled Tribe provisionally, subject to proving  their claim.  The performance of these candidates including  the appellant in the Civil Services (Main) Examination, 1994  was assessed on relaxed standards meant for Scheduled Tribe  candidates.  The result of the written part of the Civil Services  (Main) Examination, 1994 was declared by the Commission on  27.04.1995 and none of the five candidates including the  appellant could qualify the written examination on the basis of  their performance even as Scheduled Tribe candidates.  The  appellant had earlier failed to qualify the Civil Services (Main)  Examination for the year 1993 even though he was treated as  Scheduled Tribe candidate provisionally.          Writ Petition  came up for final hearing in July, 1999.   The Single Judge of the High Court in its judgment dated  5.7.1999 held that the question, as to whether "Lohar" was a  Scheduled Tribe in the State of Bihar stands concluded by a  judgment of this Court in Nityanand’s case (supra) and  accordingly held that "Lohar" community is "Other Backward  Class" (OBC) and not a Scheduled Tribe.         The appellant being aggrieved filed letters patent appeal  in the High Court which has been dismissed by the impugned  order.          Under the Constitution (Scheduled Tribes) Order, 1950  issued in exercise of powers conferred under Article 342 (a) of  the Constitution of India, at S. No. 20 the tribe "Lohara" was  mentioned as a Scheduled Tribe for the State of Bihar.  The  first Backward Classes Commission was set up in the year  1953 known as the Kaka Kalelkar Commission.  According to  the report of the Kaka Kalelkar Commission, amongst the list  of Backward Classes, "Lohar" was shown at S. No. 60.   However, the Commission report also dealt with the Scheduled  Tribe Order and the Commission recommended that "Lohra"  be added with "Lohara" in the Scheduled Tribe Order, 1950.           After the Kaka Kalelkar Commission report, the  Scheduled Castes and Scheduled Tribes Order (Amendment)  Act, 1956 was enacted which was brought into force with  effect from 25.09.1956 and for Bihar, entry 20 was substituted  to read as "Lohara" or "Lohra".  Thus, right upto 1976 there  was no ambiguity in the Scheduled Tribe Order as only  "Lohara" was initially considered as a Scheduled Tribe and  with effect from 1956 "Lohara" as well as "Lohra" were  mentioned as Scheduled Tribe.           In the year 1976 the Scheduled Castes and Scheduled  Tribes Order (Amendment) Act, 1976 was passed and in the  English version of the same, viz. entry 22 the position as  existing from 1956 was maintained.  "Lohara" and "Lohra"  were stated to be Scheduled Tribes.  However, in the Hindi  translation of the said entry "Lohara" was translated as  "Lohar".  Thus the Hindi translation had "Lohar" and "Lohra"  as two Scheduled Tribes.  After the 1976 Amendment,  members of the "Lohar" community started claiming  themselves to be members of Scheduled Tribe even though

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they had been identified as a backward class as early as in the  year 1955 by Kaka Kalelkar Commission.          Because of the ambiguity in the Hindi translation of the  1976 Scheduled Tribe Order, members of "Lohar" community  claimed themselves to be members of Scheduled Tribe.  The  first litigation which came to the Supreme Court on this  subject was Civil Appeal No. 4631 of 1990 in the case of  Shambhu Nath Vs. Union of India & Another.   This came up  for hearing before three Judges of this Court.  This Court  disposed of the appeal  on 12.9.1990 by passing the following  order:- " Special Leave granted.                 The short point raised in this appeal is as to  whether the Central Administrative Tribunal was right  in holding that the appellant did not belong to the Lohar  community which has now been declared as a  Scheduled Tribe in Chapra District of Bihar.  It is not in  dispute that from 1976 onwards the community has  been so included but according to the Postal  Department of Union of India, at the time when the  appellant entered service, the community had not been  so included and, therefore, the recruitment on the  footing that he was a member of a scheduled Tribe  entitled to reservation was bad.         We have looked into the record and have heard  counsel for the parties.  In view of the accepted position  that Lohar community is included in the Scheduled  Tribe from the date of amendment of the list in 1976  and the dispute as to whether the community was  known as "Lohar" or "Lohra" and if it was the latter, it  has been so included from before, we do not think the  Tribunal was justified in holding the view it has taken.         The appeal is allowed and the order of the  Tribunal is vacated.  The appellant shall now return to  duty.  The period between 16.12.1986 when the order  removing him was made and the date when he would  join in terms of our declaration now he shall be entitled  to 50% of his salary.  In regard to all other service  benefits, his service shall be treated to be continuous.   This decision may not be taken as a precedent.  No  costs."                                                         [Emphasis supplied]         It may be noted that at that point this Court did not  notice the discrepancy between the English and the Hindi   translation of the Scheduled Tribes Order and proceeded on  the premise that "Lohar" being mentioned in the Hindi version  of the Order, the appellant  was entitled to get the benefit of  being a Scheduled Tribe.  Even the counsel appearing on  behalf of the Union of India did not point out to the Court the  discrepancy and the order was passed treating the "Lohars" as  members of the Scheduled Tribe.  Rather the Union of India  accepted the position that "Lohar" community is included in  the Scheduled Tribe.  This order was passed by the Court  without any contest.           The question regarding the claim of "Lohar" community  to be considered as Scheduled Tribe came up before this Court  in Nityanand Sharma’s case (supra), which was initially listed  before the two Judge-Bench which upon being showen the  case of Shambhu Nath (supra) thought it fit to refer the matter  to three Judges.  Incidentally, one of the Judges in the case of  Nityanand Sharma (supra) was also a party to the decision in  the case of Shambhu Nath (supra).  The Court in Nityanand  Sharma’s case (supra) examined in detail as to whether there  were three castes/tribes by the nomenclature of "Lohar",  "Lohara" and "Lohra" or whether "Lohar" and "Lohara" were

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one and the same thing and if "Lohar" and "Lohara" were two  different castes/tribes then which one of them would qualify  as a tribe or whether both will qualify as Scheduled Tribe.    The Court after noticing the ambiguity existing in the Hindi  translation of 1976 Scheduled Tribe Order held that whereas  "Lohara" and "Lohra" belonged to the Scheduled Tribe, the  "Lohars" in State of Bihar belonged to the Other Backward  Classes.           The Court was called upon to declare as to whether the  Hindi translation was correct or original English text was  correct.  For this limited purpose the Bench looked into the  authoritative ethnographic survey conducted in India by H.H.  Risley.  From the said survey the Court observed that "Lohar"  is a sub-caste of Barhai who work in iron.  In Risley’s  Ethnographic Glossary the "Lohar" community has been dealt  with in great detail.  In the same Glossary "Lohara" and  "Lohra" are mentioned as tribe of Chota Nagpur.   The Court  took notice of Article 348 (1)(b) of the Constitution of India  which provides that the authoritative text of all bills to be  introduced or amendments thereof to be moved in either  House of the Parliament shall be in English language.  The  Bench after a detailed and considered judgment held that the  original version which was in English was the authoritative  text whereas the Hindi was the translated version.  It was  concluded that in the Hindi version there was some defect in  the translation because of which the "Lohar" community had  been claiming the advantage of being a "Scheduled Tribe"  when actually they were only a backward class and thus could  not be given the benefit of reservation as a Scheduled Tribe.  It  was further held by  that Sambhu Nath’s case (supra) could  not be treated as authoritative in point as the same was based  on concession.           After Nityanand Sharma’s judgment (supra), an effort  was made by the members of the "Lohar" community to claim  themselves as Scheduled Tribe and the matter came up to the  Supreme Court.  A bench of two judges in Vinay Prakash &  Ors. Vs. State of Bihar, 1997 (3) SCC 406, by a speaking  order  reaffirmed the view taken in the Nityanand Sharma’s  case (supra) and held that there was no question of the  "Lohar" community being given the benefit of being Scheduled  Tribe.  The bench refused to refer the case of Nityanand  Sharma’s (supra) to a larger bench.  This is the second  attempt being made by the members of the "Lohar" community  to get the decision in Nityanand Sharma’s case (supra) re- opened and referred  to a larger bench for reconsideration.   There is no dispute on the proposition that if the  Presidential Notification does not contain any specific class or  tribe or a part of, then 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.  The Courts  must read the lists of Schedule Castes  and Schedule Tribes  under Article 341 and 342 read with  Article 366 ( 24) and (25)   as they find them and accept their ordinary meaning.  Neither  the Government nor the judiciary can add or subtract to the   List of Scheduled Castes and Scheduled Tribes.  But, the  Court would have  the limited jurisdiction to the 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. To that limited extent, the court  would have the jurisdiction but, otherwise, the court is devoid  of power to include in or exclude from or substitute or declare  synonyms to the Scheduled Caste or Scheduled Tribe or parts  thereof or group of such castes or tribes.

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       Shri Rajeev Dhavan, learned senior counsel appearing for  the appellant has contended that Nityanand’s case  (supra)   was wrongly decided because:  (a)     Nityanand’s case was relied on social data selected  by the Judges whereas such selection was  prohibited by law;  (b)     Nityanand’s case  failed to take into consideration  the Hindi Text which was authoritative in its own  language.  

We do not find any substance in the submissions made  by Shri Rajeev Dhavan.  In Nityanand’s  case this Court  examined in detail as to whether there were three casts/tribes  by the nomenclature Lohra,  Lohara  and Lohar  or whether  Lohar and Lohara were one and the same thing and if Lohar  and Lohara were two different castes/tribes then which one of  them would qualify as a tribe or whether both will qualify as a  tribe. This Court after detailed consideration came to the  conclusion that the ambiguity was caused  because of Hindi  translation of  the 1976 Scheduled Tribe Order.   The Court  was called upon to declare as to whether the Hindi translation  was correct or the original English text was correct.   For this  limited purpose the Court looked at the Ethnographic Survey  conducted in India by H.H. Risley.  After taking into  consideration the said survey, the Court observed that Lohar  is a sub-caste of Barhai who works in iron.   In Risley’s  Ethnographic Glossary  the Lohar Community has been dealt  with in great detail.  In the same Glossary Lohara and Lohra  are mentioned as tribes of Chota Nagpur.   The Court did not  refer to or rely upon the text of Risley to include or exclude a  caste in the Presidential Order or amend or alter the  Presidential Order.   Risley’s survey was examined to remove  the ambiguity which had crept in because of the contradictory  entries in English and Hindi versions of the Presidential Order.  

       The Court after taking notice of Article 348 (1) (b) of the  Constitution of India which provides that the authoritative text  of all Bills to be introduced or amendments  thereof to be  moved in either House of the Parliament shall be in English  language came to the conclusion that the Hindi version was a  translated  version  and the original version was the  authoritative text and in the Hindi version there was some  defect in translation because of which Lohar Community had  been claiming the advantage of being a Scheduled Tribe when  actually they were only a backward class and thus could not  be given the benefit of reservation as a Scheduled Tribe.   It  was observed in Nityanand’s  case (supra)

"19.  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  \005..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 clauses,  where the Legislature of a State has  prescribed any language other than the  English language for use in Bills

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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 text.  When the Schedules were translated into  Hindi, the translator wrongly translated  Lohara as Lohar omitting the letter ’a’  while Lohra is written as mentioned in  English version. It is also clear when we  compare Part XVI of the Second Schedule  relating to the State of West Bengal, the  word Lohar both in English as well as in  the Hindi 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."

We are in the respectfully agreement with the view taken  in Nityanand’s  case.   

Learned senior counsel  appearing for the appellant  contends that after the coming into force of the Official  Languages Act, 1963 the Hindi version was the authoritative  text and in the case of ambiguity between Hindi and English  versions, the Hindi version would prevail.        Article 348 of the  Constitution clearly provides English to be the authoritative  text in respect of Acts of Parliament, amendment to Acts  subject to any law made by the Parliament.  The Official  Languages Act, 1963 vide Section 3 thereof provides for  continuance of English language for official purposes of  Union  and for use in Parliament.  Section 5 provides for a Hindi  translation of all Central Acts and Ordinances promulgated by  the President or if any order or rule or regulation or bye-laws  issued under the Constitution or under any Central Act.    Section 6 deals with State Act with which we are not  concerned in the instant case.  From the conjoint reading of  Article 348 of the Constitution and Sections 3 and 5 of the  Official Languages Act, 1963, English continues to remain the  authoritative text in respect of the Acts of Parliament.   

An attempt was made to get the judgment in Nityanand’s   case re-opened and considered by the larger Bench in Vinay  Prasad’s case (supra).   Shri Rajeev Dhavan, learned Senior  counsel appearing for the appellant in the instant case  incidentally was the counsel in the said case as well.   Submission similar to the one which has been made before us  had been made in Vinay Prasad’s case (supra) case as well.   The Division Bench rejected the said contention.  We are in  agreement with the view taken in the Vinay Prasad’s case  (supra) as well.

For the reasons stated above we do not find any merit in

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the civil appeal and the writ petitions and dismiss the same  with costs throughout.