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PETITIONER: VINAY PRAKASH & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       17/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This is  the fourth attempt made by the Lohar Community to get  into the  status of  Lohara. Lohars are, admittedly, blacksmiths, a  backward community  in the  State of  Bihar. Loharas 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 LPA  No. 831/96.  The 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  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 purpose of  this Constitution."  Thereafter,  the  Scheduled Castes and  Scheduled Tribes  Orders (Amendment)  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 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 petitioners approached  the courts. While the desired social status certificate  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, before a Bench of three Judge of this Court,  to   which one  of us  (K. Ramaswamy, J.) was a member, in  Shambhoo Nath vs. Union of India & Anr. [ CA 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. On that  premise, the  order of  the Administrative Tribunal was  set   aside  and  direction  was  given  to  issue  the certificate of  Scheduled Tribes.  Since the  social  status certificate  were  not  issued  despite  direction  in  that regard, a  writ petition under Article 32 was again filed in this Court  seeking a  writ of  mandamus directing  all  the

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authorities in  the State  to issue certificate 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,  J.)  was  a member.      Later,  the   matter  was   considered  in  extenso  in Nityanand Sharma  vs. 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, which is a Scheduled Tribe and, therefore, the entitlement  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  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 Sharma’s case, it was not open  to the  High Court  to go  into the  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 vs.  D. Munichinnappa  [(1965) 1  SCR 316  at 322), Srish Kumar Choudhury vs. State of Tripura [1990 Supp. SCC 220  para 12  and para 20] and Palghat Thandan Samudhava Samrakshana Samiti  vs. State  of Kerala [1994] 1 SCC 359 at 364, para  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 President of India  under Article 341 and 342 of the  Constitution, as the case may be; therefore, the view of this Court mentioned in Nityanand Sharma’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 in 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 detail in Nityanand Sharma’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 vs. Shivchand  [(1969) 1 SCC 20] and Srish Kumar Choudhary’s case wherein  this Court  had held that it would not be open to the  Court  to  go  into  question  whether  ’mochi’  was included in  the  notified  caste  of  chamar.  Equally,  in Palghat’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,,  this Court had held that it was not open to  the Government  to go  into that question  until it was suitably  modified by  a Presidential  notification. All

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these cases have been considered in one judgment or other by this Court in particular in Nityanand Sharma’s case.      The question  is:  whether  a  person,  who  is  not  a Scheduled  Tribe  under  he  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 Nityanand  Sharma’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 to for  the  executive  Government  but  for  the  Court  to interpret the  rules and construe as to whether a particular caste or a tribe or a part or section thereof is entitled to claim  the   status  of   Scheduled  Tribes.   Under   these circumstances, we  think  that  the  decision  in  Nityanand Sharma’s case  does not require any reconsideration; so also other decisions  referred to  therein except  the  Palghat’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  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 vs. Kumar G.N. Ambiga [1995 Supp.(2) SCC 560] and Government of Andhra Pradesh vs.  Bala Musalaiah  [(1995)  1  SCC  184].  We  are afraid, we  cannot accede  to the  contention of the learned counsel.  This  is  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 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 the status of  Scheduled Tribes.  Under these circumstances, the above two  judgements have  no application  to the  facts in this case.      The Special Leave Petition is accordingly dismissed.