# STATE OF MAHARASHTRA v. MILIND AND ORS

- **Citation:** [2000] Supp. 5 S.C.R. 65
- **Court:** Supreme Court of India
- **Decided:** 2000-11-28
- **Bench:** G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, DORAi SWAMY RAJU, Shivaraj V. Patil
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-milind-and-ors-17716
- **Pages:** 34

## Headnote

A
B
Constitution (Scheduled Tribes) Order, 1950: Part IX Entry 19.
Entries-Genera/ name mentioned in-Holding of enquiry-To determine C
whether any tribe or community is include in-Held: ls not permissible even
though it is not specifically mentioned therein.
Entries-Interpretation of-Held: Must be read as it is-A tribe, subtribe part of or group of any tribe or tribal community is not synonymous to D
the one mentioned therein unless specifically mentioned so.
Scheduled Tribe- "Halba/Halbi "--Scope and ambit of-Held: HalbaKoshti cannot be treated to be a sub-tribe of Ha/ba/Halbi-Doctrine of stare
decisis wrongly applied by High Court to take a different view-Scheduled
Castes and Scheduled Tribes (Amendment) Act. 1976.
E
"Halba!Ha/bi-Caste Certificate-Admission to MBBS course in
reserved category-On the basis of-Candidate belonging to "Koshti" caste
was granted certificate by the concerned authority as belonging to "Halbal
Ha/bi" Scheduled Tribe caste-Candidate secured admission on the basis of
this certificate-Appellate authority rejected the said certificate-Dispute F
regarding correctness of certificate came up before Supreme Court after 15
years-Held; Certificate is illegal-But candidate allowed to practise as a
doctor-However, the candidate is not entitled to take any advantage of the
Scheduled Tribes Order any further-Moreover, any appointments that have
become final will be unaffected-Constitution of India, 1950. Arts. 136 and G
142.
"Halba/Ha/bi"--"Koshti"-Whether a sub-tribe of Halba· -Enquiry to
determine-Permissibility of-Held: it is not permissible to let in evidence or
hold enquiry to decide or declare any tribe or part or group of tribe or tribal
community as included in the general name mentioned in the Scheduled H
65
66
SUPREME COURT REPORTS [2000) SUPP. 5 S.C.R .
. A Tribes Order-"Koshti" is not a part or "Ha/ba/Ha/bi" and cannot be
declared so by any court or tribunal.
Constitution of India, 1950: Articles 341, 342 and 366 (24) & (25).
Objects of-Held: (i) To provide additional protection to the members
B of 'SC and ST having regard to their social and educational backwardness
and (ii) to keep away disputes touching whether a caste/tribe is or is not
SC/ST for the purpose of the Constitution.
c
"Castes" and "tribes "-Meaning of-Held: These words have been
used as defined in Arts. 366 (24) &(25) and not in the ordinary sense.
Scheduled Tribes-Notification specifj;ing Power to amend-Held: Can
be amended only by Parliament by law and not by State Governments, any
authority, courts and tribunals-State Government Circular amending the ST
Order not binding on the Government.
Scheduled Tribes-Notification specifj;ing-Power of President-Scope
D and ambit of-Held: Is limited to notifj;ing parts or groups within the caste
or tribe and to further specifj; castes or tribes thereof in relation to parts of
the State and not to the entire State.
Scheduled Tribe- "Halba "-Belonging t<>-Proof of-Mode-School
E leaving Certificate-State Government issued a Circular declaring School
leaving Certificate as valid proof in respect of "Ha/bas" -legality ofHeld: is unconstitutional and contrary to Central Government's instructionsHence, the High Court erred in treating the School leaving Certificate as
conclusive proof and in declaring the Circular as binding on the State
Government.
F
Article 227-lnferior Tribunal's Order-Judicial Review of-Power of
High Court-Nature of-Held: is supervisory and not appellate-Where the
Scrutiny Committee and the Appellate Authority, after holding elaborate
enquiry and examining all relevant materials, recorded the finding that a
person belonged to "Koshti" caste and not to "Halba/Halbi" , a Scheduled
G Tribe under Entry 19 Scheduled Tribes Order, the High Court exceeded its
supervisory jurisdiction by examining the materials afresh and arriving at a
different conclusion.
Precedents-"Stare decisis "-Rule of-Scope-Held: Is not inflexible
so as to preclude a departure therefrom in order to give quietus t

## Text

_Characters 0–39,969 of 87,352. This is a partial read: ask again with offset=39969 for what follows._

STATE OF MAHARASHTRA
v.
MILIND AND ORS.
NOVEMBER 28, 2000
[G.B. PATTANAIK, S. RAJENDRA BABU, D.P. MOHAPATRA,
DORAi SWAMY RAJU AND SHIVARAJ V. PATIL, JJ.]
A
B
Constitution (Scheduled Tribes) Order, 1950: Part IX Entry 19.
Entries-Genera/ name mentioned in-Holding of enquiry-To determine C
whether any tribe or community is include in-Held: ls not permissible even
though it is not specifically mentioned therein.
Entries-Interpretation of-Held: Must be read as it is-A tribe, subtribe part of or group of any tribe or tribal community is not synonymous to D
the one mentioned therein unless specifically mentioned so.
Scheduled Tribe- "Halba/Halbi "--Scope and ambit of-Held: HalbaKoshti cannot be treated to be a sub-tribe of Ha/ba/Halbi-Doctrine of stare
decisis wrongly applied by High Court to take a different view-Scheduled
Castes and Scheduled Tribes (Amendment) Act. 1976.
E
"Halba!Ha/bi-Caste Certificate-Admission to MBBS course in
reserved category-On the basis of-Candidate belonging to "Koshti" caste
was granted certificate by the concerned authority as belonging to "Halbal
Ha/bi" Scheduled Tribe caste-Candidate secured admission on the basis of
this certificate-Appellate authority rejected the said certificate-Dispute F
regarding correctness of certificate came up before Supreme Court after 15
years-Held; Certificate is illegal-But candidate allowed to practise as a
doctor-However, the candidate is not entitled to take any advantage of the
Scheduled Tribes Order any further-Moreover, any appointments that have
become final will be unaffected-Constitution of India, 1950. Arts. 136 and G
142.
"Halba/Ha/bi"--"Koshti"-Whether a sub-tribe of Halba· -Enquiry to
determine-Permissibility of-Held: it is not permissible to let in evidence or
hold enquiry to decide or declare any tribe or part or group of tribe or tribal
community as included in the general name mentioned in the Scheduled H
65
66
SUPREME COURT REPORTS [2000) SUPP. 5 S.C.R .
. A Tribes Order-"Koshti" is not a part or "Ha/ba/Ha/bi" and cannot be
declared so by any court or tribunal.
Constitution of India, 1950: Articles 341, 342 and 366 (24) & (25).
Objects of-Held: (i) To provide additional protection to the members
B of 'SC and ST having regard to their social and educational backwardness
and (ii) to keep away disputes touching whether a caste/tribe is or is not
SC/ST for the purpose of the Constitution.
c
"Castes" and "tribes "-Meaning of-Held: These words have been
used as defined in Arts. 366 (24) &(25) and not in the ordinary sense.
Scheduled Tribes-Notification specifj;ing Power to amend-Held: Can
be amended only by Parliament by law and not by State Governments, any
authority, courts and tribunals-State Government Circular amending the ST
Order not binding on the Government.
Scheduled Tribes-Notification specifj;ing-Power of President-Scope
D and ambit of-Held: Is limited to notifj;ing parts or groups within the caste
or tribe and to further specifj; castes or tribes thereof in relation to parts of
the State and not to the entire State.
Scheduled Tribe- "Halba "-Belonging t<>-Proof of-Mode-School
E leaving Certificate-State Government issued a Circular declaring School
leaving Certificate as valid proof in respect of "Ha/bas" -legality ofHeld: is unconstitutional and contrary to Central Government's instructionsHence, the High Court erred in treating the School leaving Certificate as
conclusive proof and in declaring the Circular as binding on the State
Government.
F
Article 227-lnferior Tribunal's Order-Judicial Review of-Power of
High Court-Nature of-Held: is supervisory and not appellate-Where the
Scrutiny Committee and the Appellate Authority, after holding elaborate
enquiry and examining all relevant materials, recorded the finding that a
person belonged to "Koshti" caste and not to "Halba/Halbi" , a Scheduled
G Tribe under Entry 19 Scheduled Tribes Order, the High Court exceeded its
supervisory jurisdiction by examining the materials afresh and arriving at a
different conclusion.
Precedents-"Stare decisis "-Rule of-Scope-Held: Is not inflexible
so as to preclude a departure therefrom in order to give quietus to an
H incorrect precedent especially when it runs counter to the Constitution.
STATEv. MILIND
67
Subordinate legislation--Circulars/Orders-State Government issued A
Circulars contrary to Constitutional provisions-Binding effect of-Held:
Not binding even on the State Government.
Words and Phrases:
"Castes" and "tribes"-Meaning of-In the context of Arts. 366(24) & B
(25) of the Constitution of India. 1950.
Doctrines:
Doctrine of Stare decisis Applicability of
c
On the basis of School Leaving Certificate and other records of his
close relatives the respondent obtained a caste certificate from the Executive
Magistrate as belonging to "Halba", a Scheduled Tribe. On the strength of
this certificate the respondent obtained admission to the MBBS degree course
for the Year 1985-86 in the reserved category meant for Scheduled Tribes.
The Certificate was sent for verification of the Scrutiny Committee constituted D
under the Directorate of Social Welfare. The said Committee, after holding
enquiry, concluded that the respondent did not b~long to the "Halba" tribe.
The Appellate Authority, after holding further enquiry, concluded that the
respondent belonged to "Koshti" caste and not to "Halba/Halbi" Scheduled
Tribe.
E
The High Court allowed the respondent's writ petition and quashed the
impugned orders inter alia holding that it was permissible to enquire whether
any sub-division of a tribe was a part and parcel of the tribe mentioned therein
and that "Halba-Koshti" was a sub-division of the main tribe"Halba/Halbi"
as per Entry 19 in the Constitution (Scheduled Tribes) Order, 1950 applicable F
to the State of Maharashtra. Hence this appeal.
On behalf of the appellant it was contended that it was not permissible
to hold an enquiry whether a particular group is a part of the Scheduled Tribe
as specified in the Scheduled Tribes Order; that the decision in Bhaiya Ram G
Munda's case did not lay down the correct principle of law as to the scope of
enquiry and the power to amend the Schedules Castes/Scheduled Tribes Order;
that the High Court misinterpreted the report of the Joint Committee of the
Parliament placed before it when representations for inclusion of "Ha Iba
Koshti" in the Scheduled Tribes Orders were rejected; that the High Court
also committed an error in invoking and applying the principle of stare decisis H
68
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A to the facts of the present case; that the High Court also erred in setting
aside the orders of the Scrutiny Committee and the Appellate Authority which
were made on proper and full consideration of evidence and authorities; that
the High Court gave undue importance to the resolutions/circulars issued by
the State Government which were contrary to law and that the High Court
B erred in treating the issue involved in the present case as already closed when
the same question was kept open by this Court in Abhay's case.
On behalf of the respondent it was contended that the old records
relating to the period when there was no controversy, clearly supported the
case of the respondent and the School Leaving Certificate issued to the
C respondent was valid and that it was open to show that a particular caste was
part of the Scheduled Tribes coming within the meaning and scope of the
tribal community even though it was not described as such in the Presidential
Order.
D
E
F
The following questions arose before this Court:-
(1) Whether at all, it was permissible to hold enquiry 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 was included in the general name even
though it was not specifically mentioned in the concerned Entry in the
Constitution (Scheduled Tribes) Order, 1950?
(2) Whether "Halba Koshti" caste was 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 was not specifically mentiOned as such?
Allowing the appeal, the Court
HELD: 1. The laudable object of Articles 341 and 342 of the Constitution
of India is to provide additional protection to the members of the Scheduled
Castes and Scheduled Tribes having regard to social and educational
backwardness from which they have been suffering since a considerable
length of time. The words 'caste' or 'tribes' in the expression 'Scheduled
G Castes' and 'Scheduled Tribes, are not used in the ordinary sense of the terms
but are used in the sense of the definitions contained in Articles 366(24) and
366(25). Therefore, a caste is a Scheduled Caste or a tribe is a Scheduled
Tribe only if they are included in the President's Order issued under Articles
341 and 342 for the purpose of the Constitution. (78-H; 79-A(
H
2.1. Under Articles 341(2) and 342(2) a notification issued under clause
STATE v. MILIND
69
(1) of the said Articles cannot be varied by any subsequent notification except A
by law made by Parliament. In other words, Parliament alone is competent by
law to include in or exclude a caste/tribe from the list of Scheduled Caste and
Scheduled Tribes specified in the notifications issued under Clause (1) of the
said Articles. In including castes and tribes in the Presidential Order, the
President is authorized to limit the notification to parts or groups within the B
caste or tribe depending on the educational and social backwardness. It is
permissible that only parts or groups within them could be specified and
further to specify castes or tribes thereof in relation to parts of the State and
not to t.he entire State on being satisfied that it was necessary to do so having
regard to social and educational backwardness. The object of Clause (1) of
Articles 341and342 is to keep away disputes touching whether a caste/tribe C
is a Scheduled Caste/Scheduled Tribe or not for the purpose of the
Constitution. [79-D-F)
2.2. Whether a particular caste or a tribe is a Scheduled Caste or a
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 D
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) should be deemed to be a Scheduled Caste/Scheduled Tribe
as the case may be. Therefore, it serves no purpose to look at gazetteers or E
glossaries for establishing that a particular caste tribe is a Scheduled ca\te/
Scheduled Tribe for the purpose of the Constitution, even though it is not
specifically mentioned as such in the presidential Orders, Orders once issued
under Clauses (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 Government or any other authority or courts F
or tribunals are vested with any power to modify or vary the said Order.
Therefore, 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 the Presidential Order if they are not expressly included in the
Orders. Since any exercise or attempt to amend the Presidential Order except G
as provided in Clause (2) of Articles 341 and 342 would be futile, holding any
enquiry or letting in any evidence in that regard is neither permissible nor
useful. [79-G-H; 80-A-Df
3. t. The President issued the Constitution (Scheduled Tribes) Order,
1950, which has been amended from time to time. Parliament passed in 1976 H
70
SUPREME COURT REPORTS [2000) SUPP. 5 S.C.R.
A the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 ·
(Act 108176). In the Constitution (Scheduled Tribes) Order, 1950 relating to
the State of Maharashtra, Part IX Entry 19 relates to 'Halba/Halbi'. Although
this Schedule is amended by law made by Parliament, Entry 19 is not amended
for adding "Halba-Koshti" in the said Entry. Looking to the other Entries in
B the same Part, it is clear that wherever a particular area was to be excluded,
it is so done by mentioning the same in the concerned Entry relating to a
tribe. Similarly, if a tribe or tribal community had other names and they were
to be included in the Entry, it is done by mentioning them specifically. When
there was agitation and representation to include " Halba Koshti", within the
Scheduled Tribes even long before the Amendment Act, 1976 was passed and
C the very fact that "'Halba-Koshti" was not included within Entry 19 relating
to "Halba/Halbi", negatives the claim of the respondent. Further, if"Halba
Koshti" was a part of group or sub-tribe of 'Halba/Halbi' Tribe there was no
need for representation to include it before the Parliamentary Joint Committee.
D
[80-E; 81-E-F)
4.1. The State have no power to amend the 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 Order
either to gain popularity or to secure votes. [82-D)
E
, Constituent Assembly Debates (Official Report, Vol. 9), referred to.
4.2. Courts cannot, and should not, expand jurisdiction to deal with the
question as to whether a particular 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. Allowing the State Governments
F or courts or other authorities or tribunals to hold enquiry 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. In order to gain advantage or reservations for the purpose of
Articles 15(4) or 16(4) several persons have been coming forward claiming
G to be covered by Presidential Orders issued under Articles 341 and 342. This
apart, when no other authority other than the Parliament, that too by law alone,
can amend the Presidential Orders, neither the State Government nor the
courts nor tribunals nor any authority can assume jurisdiction to hold enquiry
and take evidence to declare that a caste or a tribe or part of or a group within
a caste or tribe is included in Presidential Orders in one Entry or the other
H although they are not expressly and specifically included. (82-F; 83-8-C)
STATE v. MILIND
71
4.3. It is not at all permissible to hold any enquiry or let in any evidence· A
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 concerned Entry in the
Constitution (Scheduled Tribes) Order, 1950. [89-C)
4.4. Further the Scheduled Tribes Order must be read as it is. It is not B
even permissible to say that a tribe, sub-tribe, part of or group of any tribe or
tribal community is synonymous to the one mentioned in the Scheduled Tribes
Order if they are not so specifically mentioned in it. (97-B]
Basavalinagappa v. D. Munichinnappa, (1965)1SCR316 and Bhaiyalal C
v. Harikishan Singh, (1965) 2 SCR 877, relied on.
Parasram v. Shivchand, (1969) 2 SCR 997 and Srish Kumar Choudhury
v. State ofTripura, (1990] Supp. SCC 220; Pa/ghat Jilla Thandan Samudhaya
Samrakshna Samithi v. State of Kerala, (1994] 1 SCC 359 and Nityanand
Sharma v. State of Bihar, [1996) 3 SCC 576, affirmed.
D
Bhaiya Ram Munda v. Anirudh Patar, (1971) 1 SCR 804; Dina v.
Narayan Singh, 38 ELR 212 and K. Adikanada Patra v. Gandua, AIR (1983)
Ori 89 (FB), overruled.
5.1. The rule ofstate decisis is not inflexible so as to preclude a departure E
therefrom in any case but its application depends on facts and circums_tances
of each case. It is good to proceed from precedent to precedent but it is earlier
the better to give quietus to the incorrect one by annulling it to avoid repetition
or perpetuation of injustice, hardship and anything ex-facie illegal more
particularly when 11 precedent runs counter to the provisions of the F
Constitution. (91-F)
5.2. The High Court applied the doctrine of stare decisis and relied on
certain decisions to support its view that "Habla-Koshti" is included in ' Halba'
or 'Balbi' Tribe. The High Court was wrong in this regard. Among the
decisions relied on by the High Court except two decisions, all other decisions G
were rendered subsequent to the two Constitution Bench decisions of this
Court in B. Basavalingappa and Bhaiya Lal cases. The said two decisions
were rendered without having the benefits of the decisions of this Court, that
too concerning the interpretation of the provisions of the Constitution. The
remaining decisions were contrary to the law laid down by this Court.
[91-D-E, GJ H
72
SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.
A
Sonabai v. Lakhmibai, (1956) NLJ 725; Madhukar Dekate v. Dean of
the Medical College, Nagpur, Letter Patent Appeal No. 157/1955, decided on
4.8.1957 (MP) (DB); Sunit Nan Umredkar v. Dr. VG Ranade, WP No. 2404 of
1980, decided on 24.9.1980 (Born) (DB); Prabodh Parhate v. State of MP.,
WP No. 1450of1981, decided on 21.1.1982 (MP) (DB); Abhay Parate v. State
B of Maharashtra, (1984) Mah LJ 289; Kalpana Bhishikar v. Director of Social
Welfae, WP No. 95of1985, decided on 14.2.1985 (Born) (DB) and State of
Maharashtra v. Abhay, AIR (1958) SC 328, referred to.
Maktul v. A!anbhari, [1959] SCR 1099, relied on.
6.1. Circular No. CBC-14811703/DV dated 31.7.1981 directed the
C Government that until further orders insofar as 'Balbas' are concerned, the
School Leaving Certificate should be accepted as valid for the purpose of the
caste. The High Court dealing with the stand of the State Government on the
issue of 'Halba-Koshti' from time to time, and also referring to circulars/
ressolutions/instructions held in favour of the respondent on the ground that
D the appellant was bound by its own circulars/order. No doubt, it is true, the
stand of the appellant as to the controversy relating to 'Halba-Koshti' has been
varying from time to time but the circulars/resolutions/instructions issued
by the State Government from time to time, some time contrary to the
instructions issued by the Central Government, are of no consequence. They
E could be simply ignored as the State Government had neither the authority
nor competency to amend or alter the Scheduled Tribes Order. [94-B-EJ
6.2. This Court in its judgment in State of Maharashtra v. Abhay,
directed that the State of Maharashtra should devise and frame a more rational
method for obtaining much in advance a certificate on the strength of which
F a reserved seat is claimed. But the High Court committed an error in
interpreting the scope of the Circular dated 31.7.1981 that the School Leaving
Certificate was conclusive of the caste. The Joint Parliamentary Committee
also did not make any recommendation to include 'Halba-Koshti' in the
Scheduled Tribes Order. Therefore, the circulars/resolution/instructions will
not help the respondent in any way. (95-A-BI
G
State of Maharashtra v. Abhay, AIR (1985) SC 328, referred to.
7.1. The power of the High Court under Article 227 of the Constitution
of India, while exercising the power of judicial review against an order of
inferior tribunal being supervisory and not appellate, the High Court would
H be justified in interfering with the conclusion of the tribunal, only when it
•
\
STATE v. MILIND
73
. reconls a finding that the inferior tribunal's conclusion is based upon A
exclusion of some admissible evidence or consideration of some inadmissible
evidence or the inferior tribunal has no jurisdiction at all or that the finding
is ~'Uch, which no reasonable man could arrive at, on the materials on record.
The .iurisdiction of the High Court would be much more restricted while
dealing with the question whether a particular caste or tribe would come within B
the puniew of the notified Presidential Order, considering the language of
Articles 341 and 342 of the Constitution. These being the parameters and in
the case in hand, the Scrutiny Committee conducting the inquiry as well as
the Appellate Authority, having examined all relevant materials and having
recorded a finding that the respondent belonged to 'Koshti' caste and has no
identity with 'Halba-Halbi', which is the Scheduled Tribe under Entry 19 of C
the Presidential Order, relating to the State of Maharashtra, the High Court
exceeded its supervisory jurisdiction by making a roving and in-depth
examination of the materials afresh and in coming to the conclusion that
'Koshtis' could be treated as 'Halbas'. ·[95-D-F)
7.2. In the light of Articles 341and342 of the Con~1itution a Scheduled D
Tribes Order can be amended only by the Parliament Hence it is not possible
to accept that orders/circulars issued by the State Government, which have
the effect of amending the Scheduled Tribes Order, were binding on the
Government or other affected parties. (96-8]
8. The respondent joined the medical course for the year 1985-86. E
Almo~115 years have 11assed since then. The respondent is said to have already
completed the course and may be he is practicing as a doctor. Therefore, at
this length of time it is for nobody's benefit, annul his admission. Huge amount
is s11ent on each candidate for completion of the medical course. No doubt,
one Scheduled Tribe candidate was deprived of joining the medical course by F
the admission given to the respondent. If any action is taken against the
respondent, it may lead to depriving the service of a doctor to the society on
whom public money has already been spent. In these circumstances, this
judgment shall not affect the degree obtained by respondent and his practicing
as a doctor. But the respondent cannot claim to belong to the Scheduled Tribe
covered by the Scheduled Tribes Order. In other words, the ~11ondent cannot G
take advantage of the Scheduled Tribes Order any further or for any other
Constitutional pu111oses. Mol'l.'<We1; the admissions and appointments that have
become final shall remain unaffected by this judgment (97-G-H; 98-A-B)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2294 of 1986. H
74
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A
·From the Judgment and Order dated 4.9.85 of the Bombay High Court
in W.P. No. 2904of1984.
S.K. Dholakia, LG. Shah, G.L. Sanghi, V.A. Mohta, P.C. Jain, U.U. Lalit,
S.S. Shinde, S.W. Deshpande, S.V. Deshpande, Ms. Aparajita Singh, G.B.
Sathe, A.K. Sanghi, Ms. J.S. Wad, C.G. Solshe, N.B. Nadam, T.M. Gedam, J.
B Wad, Ashish Wad, Ms. Niharika Bahl, P. Narasimhan, D.N. Misra, S.W.A.
Qadri, S.K. Dwivedi, D.M. Nargolkar, Ravindra Bana and Shivaji M. Jadhav
for the appearing parties.
The Judgment of the Court was delivered by
C
SHIVARAJ V. PATIL, J. In this appeal, the following two questions
arise for consideration:-
( 1) Whether at all, it is permissible to hold enquiry and let in evidence
to decide or declare that any tribe or tribal community or part of or group
D within any tribe or tribal community is included in the general name even
though it is not specifically mentioned in the concerned Entry 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 State of
E Maharashtra, even though it is not specifically mentioned as such?
F
G
H
On 8-1-1988, this Court passed the following order:-
"The prayer of the Union of India to be impleaded as party in both
the appeals and writ petition as party respondent is granted. The
name of the Union of India may be shown as the party respondent
when the matter is listed.
Both the sides agree that this matter involves a question which has
been decided by the Constitution Bench consisting of 5 Hon'ble
Judges of this Court and that there is also a subsequent judgment of
a Division Bench of 2 Hon 'ble Judges of this Court. One of the points
raised is that there is a conflict between the two judgments. Under the
circumstances, both sides state that this is a fit case for being referred
to the Constitution Bench. We accordingly direct that this matter be
placed before the Hon'ble Chief Justice for placing the same before
the Constitution Bench. Both the sides state that the matter is very
urgent and the matter be listed for early hearing. This request may,
\
STATE v. MILIND [PATIL, J.]
75
however, be addressed to the Constitution Bench."
Pursuant to the said order, the appeal is placed before us for
consideration and decision.
A
The facts briefly stated to the extent they are relevant and required for
the decision are the following.
B
The respondent no. I herein filed the Writ Petition No. 2944/84 at the
Nagpur Bench of the Bombay High Court to quash the orders passed by the
Director of Social Welfare (R-6) and the Additional Tribal Commissioner (R5) which invalidated the caste certificate issued to him as belonging to C
Scheduled Tribe. It is stated that Raoji Koshti of Khapa Town in Nagpur
Tehsil had a son by name Bajirao who had a son by name Sharad. The present
respondent no. I namely, Milind is the son of said Sharad. On the basis of
school certificate and other records of the respondent no. I and his close
relatives, he obtained caste certificate from the Executive Magistrate, Nagpur
on 20.8.1981 as belonging to 'Halba' Scheduled Tribe which is recognized as D
Scheduled Tribe. Having the said certificate, he applied to the Government
Medical College for admission to MBBS degree course for the year 1985-86
in the reserved category meant for Scheduled Tribes. It appears his name was
included in the merit list of the candidates belonging to the Scheduled Tribe.
As per the procedure prescribed then, his certificate was sent for verification E
of the Scrutiny Committee constituted under the Directorate of Social Welfare,
Pune. The said Committee after conducting enquiry and having due regard
to documents placed on record and other aspects concluded that the
respondent no. I did not belong to 'Halba' Scheduled Tribe. Consequently,
the Caste Certificate issued to him as such was rejected. The respondent no.
I, aggrieved by the order made by the Committee, filed an appeal before the F
Additional Tribal Commissioner, Nagpur. The appellate authority having held
further enquiry and after considering all aspects, by a detailed order dismissed
the appeal, clearly recording a finding that the respondent no. I belonged to
"Koshti" caste and that he did not belong to "Halba/Halbi" Scheduled Tribe.
The appellate authority went to the extent of saying that he belonged to
"Koshti" caste thereof. The appellate authority collected the birth register G
indicating the birth of a female child to Bajirao Raghoji, the school record of
Municipal Primary School, Khapa, indicating admission entries of said Bajirao,
as also the Dhaka! Kharij Register of Municipal Primary School containing the
entry of admission of Sharad, the father of the respondent no. I. From these
records, it was found that the entire family of respondent no. I belonged to H
76
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A the 'Koshti' caste. The appellate authority recorded the statement of the .
father of the respondent, who accepted that these entries related to him, his
father and his step-sister Shantabai, daughter of Bajirao Koshti. In his statement,
he further admitted that all his relatives have married in their own caste and
there was no instance of inter-caste marriage having taken place; in the
B records, name of the caste and occupation were separately mentioned. His
own explanation was that entry 'Koshti' found in the documents did not
indicate caste but it only pertains to occupation. The appellate authority
looking to various other entries in the register found that the caste and
occupation are separately mentioned. It was also noticed that the respondent
no. I did not tender any evidence to show that he belonged to 'Halba-Koshti'
C sub-caste. The appellate authority referring to various imperial Gazetteers and
other public documents for a period of I 50 years came to the conclusion that
the 'Kosh ti' was an independent and distinct caste having no relationship or
identity with the 'Halba' /'Halbi' Scheduled Tribe. It also took note of the
Circular dated 13 .2.1984 issued by the Central Government that 'Halba-Koshtis'
were seeking undue benefits of reservation by posing themselves as 'Halba'/
D 'Halbi' Scheduled Tribe and in the light of clinching evidence the appellate
authority felt itself bound to hold that the respondent no. 1 did not belong
to the 'Halba' Scheduled Tribe and declined to give presumptive value to the
school leaving certificate of the respondent no. I as postulated in the Circular
dated .31.07.1981, in the face of overwhelming evidence and circumstances to
E the contrary. Hence the respondent no. I filed the writ petition as already
mentioned above.
The High Court allowed the writ petition and quashed the impugned
orders inter alia holding that it was permissible to enquire whether any subdivision of a tribe was a part and parcel of the tribe mentioned therein and
F that 'Halba-Koshti' is a sub-division of main tribe 'Halba'/'Halbi' as per Entry
no. 19 in the Scheduled Tribe Order applicable to Maharashtra. Hence the
State of Maharashtra has came up in appeal by special leave, questioning the
validity and correctness of the order of the High Court allowing the writ
petition of the respondent no. I.
G
Mr. S.K. Dholakia, the learned senior counsel for the appellant, urged
that (I) the High Court committed an error in holding that it was permissible
to hold an enquiry whether a particular group is a part of the Scheduled Tribe
as specified in the Scheduled Tribe Order; (2) the High Cou1t was not right
in saying that the decision in Bhaiya Ram Munda v. Anirudh Patar, (1971]
H I SCR 804 laid down the correct principle of law contrary to the Constitution
STATE v. MILIND [PATIL, J.]
77
Bench decisions of this Court as to the scope of enquiry and the power to A
amend the Scheduled Castes/Scheduled Tribes Order; (3) the High Court
misinterpreted the report of the Joint Committee of the Parliament placed
before it when representations for inclusion of"Halba Koshti" in the Scheduled
Tribes Order were rejected; (4) the High Court also committed an error in
invoking and applying the principle of stare decisis to the facts of the case B
in hand particularly when the earlier pronouncements were manifestly incorrect
and were rendered without having the benefit of law laid down by this Court;
(5) the High Court also erred in setting aside the orders of respondents 5 and
6 which were made on proper and full consideration of evidence and authorities;
(6) the findings of fact recorded by the authorities based on proper and
objective assessment of evidence could not be disturbed by the High Court; C
(7) it was also not correct on the part of the High Court to give undue
importance to the resolutions/circulars issuej by the State Government contrary
to law and without authority of law concerning the subject; and (8) it was not
correct to say that the issue involved in the case was already closed when
the same question was kept open by this Court in the State of Maharashtra
v. Abhay Sharavan Parathe, AIR (1985) SC 328.
D
Per contra, Mr. G.L. Sanghi, the learned senior counsel for the respondent
no. I made submissions supporting and justifying the ultimate conclusion
arrived at in the impugned judgment and order of the High Court. According
to him, the old records relating to the period when there was no controversy,
clearly supported the case of the respondent no. I and the school leaving E
certificate issued to the respondent no. I was valid. He also submitted that
it was open to show that a particular caste was part of Scheduled Tribes
coming within the meaning and scope of tribal community even though it is
not described as such in the Presidential Order. The learned senior counsel
was not in a position to say that the principle of stare decisis could be applied p
to the facts of the case in hand. He finally submitted that at this length of
time, the career and future of the respondent no. I may be protected.
Mr. P.C. Jain, the learned senior counsel for respondent no. 3, submitted
that more or less he had similar submissions to make as advanced by Shri
Sanghi, the leaned senior counsel and there was nothing more to be added G
except saying that he represented the Adivasi Sangharsh Samiti, respondent
no. 3 and the decision that will be rendered in the case will have great impact
on large number of candidates.
We have deeply and carefully considered the contentions raised and
submissions made by the learned counsel for the parties and examined the H
78
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A impugned judgment of the High Court.
B
c
D
E
F
Articles 341 and 342 of the Constitution of India read as under:-
"341. Scheduled Castes--(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 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].
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under clause (I)
any caste, race or tribe or part of or group within any caste, race or
tribe, but save as aforesaid notification issued under the said clause
shall not be varied by any subsequent notification".
"342. Scheduled Tribes (I) 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 (I)
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."
By virtue of powers vested under Articles 341 and 342 of the
Constitution of India, the President is empowered to issue public notification
for the first time specifying the castes, races or tribes or part of or groups
G within castes, races, or tribes which shall, forthe purposes of the Constitution
be deemed to be Scheduled Casts or Schedules Tribes in relation to a State
or Union Territory, as the case may be. The language and terms of Articles
341 and 342 are identical. What is said in relation to Article 341 mutatis
mutandis applies to Article 342. The laudable object of the said Articles is to
provide additional protection to the members of the Scheduled Castes and
H Scheduled Tribes having regard to social and educational backwardness from
STATE v. MILIND (PATIL, .f.]
79
which they have been suffering since a considerable length of time. The A
words 'castes' or 'tribes' in the expression 'Scheduled Castes' and 'Scheduled
Tribes' are not used in the ordinary sense of the terms but are used in the
sense of the definitions contained in Article 366(24) and 366(25). In this view,
a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are
included in the President's Orders issued under Articles 341 and 342 for the
purpose of the Constitution. Exercising the powers vested in him, the President
has issued the Constitution (Scheduled Castes) Order, 1950 and the
Constitution (Scheduled Tribes) Order, 1950. Subsequently, some Orders were
issued under the said Articles in relation to Union Territories and other States
and there have been certain amendments in relation to Orders issued, by
B
Amendment Acts passed by the Parliament.
C
Plain language and clear terms of these Articles show (I) the President
under Clause ( 1) of the said Articles may with respect to any State or Union
Territory and where it is a State, after consultation with the Governor, by
public notification specify the castes, races or tribes or parts of or groups
within the castes, races or tribes which shall for the purposes of the Constitution D
be deemed to be Scheduled Castes/Scheduled Tribes in relation to that State
or Union Territory as the case may be; (2) Under Clause (2) of the said
Articles, a notification issued under Clause (l) cannot be varied by any
subsequent notification except by law made by Parliament. In other words,
Parliament alone is competent by law to include in or exclude a caste/tribe E
from the list of Scheduled Castes and Scheduled Tribes specified in notifications
issued under Clause (\) of the said Articles. In including castes and tribes
in Presidential Orders, the President is authorized to limit the notification to
parts or groups within the caste or tribe depending on the educational and
social backwardness. It is permissible that only parts or groups within them
could be·specified and further to specify castes or tribes thereof in relation F
to parts of the State and not to the entire State on being satisfied that it was
necessary to do so having regard to social and educational backwardness.
States had opportunity to present their views through Governors when
consulted by the President in relation to castes or tribes, parts or groups
within them either in relation to entire State or parts of State. It appears that G
the object of Clause ( l) of Articles 34 I 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 (I) of
Articles 341 and 342 is to be determined looking to them as they are. Clause H
80
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A (2) of the said Articles does not pennit 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 the Parliament that is competent to amend the
Orders issued under Articles 341 and 342. As can be seen from the Entries
B 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 Schedules. In this view
it serves no purpose to look at gazetteers or glossaries for establishing that
a particular caste/tribe is a Schedule Caste/Scheduled Tribe for the purpose
of Constitution, even though it is not specifically mentioned as such in the
C Presidential Orders. Orders once issued under clause (I) 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 said Orders. If that be so, no enquiry is permissible
and no evidence can be let in for establishing that a particular caste or part
D or group within tribes or tribe is included in Presidential Order if they are not
expressly included in the Orders.