Very important points
1. It is not at all permissible to hold any enquiry or let in any evidence or decide or declare that any tribe to 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.
2. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.

Headnote:(i) Constitution of India—Articles 341 and 342—Scheduled Tribes Order 1950—Entries in Constitution Scheduled Tribes Order—Notification issued under Article 342(1) specifying Scheduled Tribes can be amended only by law to be made by parliament—Scheduled Tribes order must be read as it is—It is not open to State Governments or Courts or Tribunals or any authority to modify amend or alter the list—ISt is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in general name even though it is not specifically mentioned in concerned Entry in the Constitution (Scheduled Tribes) order.
       It is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe to 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. The Scheduled Tribes Order must be read as it is. It is not 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. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament by law and by no other authority. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar & others (1971(1) SCR 804) and Dina v. Narayan Singh (38 ELR 212), did not lay down law correctly in stating that the enquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no enquiry at all is permissible and no evidence can be let in, in the matter. (Para 29) (See also Paras 9, 12 & 21)
       (ii) Stare decisis—Rule of—Application of Rule.
       The rule of stare decisis is not inflexible so as to preclude a departure therefrom in any case but its application depends on facts and circumstances 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 a precedent runs counter to the provisions of the Constitution. (Para 24)

SHIVARAJ V. PATIL, J.

( 1 ) 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 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 Maharashtra, even though it is not specifically mentioned as such?

( 2 ) 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, however, be addressed to the Constitution Bench. "

( 3 ) PURSUANT to the said order, the appeal is placed before us for consideration and decision.

( 4 ) THE facts briefly stated to the extent they are relevant and required for the decision are the following.

( 5 ) THE respondent No. 1 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 (R-5) which invalidated the caste certificate issued to him as belonging to 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. 1 namely, Milind is the son of said Sharad. On the basis of school certificate and other records of the respondent No. 1 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 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 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. 1 did not belong to 'halba' Scheduled Tribe. Consequently, the Caste Certificate issued to him as such was rejected. The respondent No. 1, aggrieved by the order made by the Committee, filed an appeal before the 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. 1 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 indicating the birth of a female child to Bajirao Raghoji, the school reco

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2000 Supreme(SC) 1903

Cases Referred (8)