1. Challenge to a State Government notification merging a caste from the Extremely Backward Classes list into the Scheduled Castes list under Article 341 of the Constitution. (Para 3 , 4 , 5 , 22 )
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2024 Supreme(SC) 596
SUPREME COURT OF INDIA
VIKRAM NATH, PRASHANT KUMAR MISHRA, JJ.
Dr. Bhim Rao Ambedkar Vichar Manch Bihar – Appellants
Versus
The State of Bihar & Ors. – Respondents
Civil Appeal No. 18802 of 2017
With
Ashish Rajak – Appellant
Versus
The State of Bihar & Ors. – Respondents
Civil Appeal No. 7793 of 2024 (Arising out of SLP(Civil) No. 18294 of 2021)
Decided on : 15-07-2024
Important Points
IMPORTANT POINT
Neither Central Government, nor President can make any amendments or changes in notification issued under Clause-1 of Article 341 specifying castes in relation to States or Union territory, as the case may be.
Neither Central Government, nor President can make any amendments or changes in notification issued under Clause-1 of Article 341 specifying castes in relation to States or Union territory, as the case may be.
Subject
Constitutional Law - Reservation
Act Referred
Bihar Reservation of Vacancies in Posts and Services for Scheduled Castes, Scheduled Tribes and other Backward Classes Act: Sch.1
Bihar State Commission for Backward Classes Act: S.10, S.11
CONSTITUTION OF INDIA: Art.338(b), Art.341, Art.366(24)
Bihar State Commission for Backward Classes Act: S.10, S.11
CONSTITUTION OF INDIA: Art.338(b), Art.341, Art.366(24)
Headnote
(A) Constitution of India – Articles 341 and 366(24) – Constitution (Scheduled Castes) Order, 1950 – Merger of “Tanti-Tantwa” caste with 'Pan/Sawasi' caste in Scheduled Castes list – Neither Central Government, nor President can make any amendments or changes in notification issued under Clause-1 of Article 341 specifying castes in relation to States or Union territory, as the case may be – Article 341 does not deal with merely castes, races or tribes but also parts of or groups within castes, races or tribes and if any change is to be made with respect to inclusion or exclusion not only of any caste, race or tribe but also of a part of or group within any of caste, race or tribe same has to be done by law made by Parliament. (Paras 12 and 13)
(B) Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 – Schedule 1 – Constitution of India – Articles 341 and 366(24) – Constitution (Scheduled Castes) Order, 1950 – Bihar State Commission for Backward Classes Act, 1993 – Sections 10 and 11 – Merger of “Tanti-Tantwa” caste with 'Pan/Sawasi' caste in Scheduled Castes list – Resolution dated 01.07.2015 was patently illegal, erroneous as State Government had no competence/ authority/power to tinker with lists of Scheduled Castes published under Article 341 of Constitution – Whether or not it was synonymous or integral part of Entry-20 of lists of Schedule Castes, it could not have been added without any law being made by Parliament – State may be justified in deleting “Tanti-Tantwa” from Extremely Backward Classes list on recommendation of State Backward Commission, but beyond that to merge “Tanti-Tantwa” with 'Pan, Sawasi, Panr' under Entry 20 of list of Scheduled Castes was nothing short of mala fide exercise for whatever good, bad or indifferent reasons, State may have thought at that moment – Whether synonymous or not, any inclusion or exclusion of any caste, race or tribe or part of or group within castes, races or tribes has to be, by law made by Parliament and not by any other mode or manner – Whether or not to include or exclude any caste in list of Extremely Backward Class would be within domain of Commission – Commission would have no jurisdiction to make recommendation with respect to any caste being included in Scheduled Castes lists and, even if it makes such recommendation, right or wrong, State has no authority to proceed to implement the same – Impugned Resolution dated 01.07.2015 quashed – Such posts of Scheduled Castes Quota which had been filled up by members of “Tanti-Tantwa” community availing benefit on the basis of Resolution dated 01.07.2015 may be returned to Scheduled Castes category and such candidates of “Tanti-Tantwa” community be accommodated by State in their original category of Extremely Backward Classes by taking appropriate measures. (Paras 36, 41 and 42)
(C) Service Law – Appointment – Reservation – Members of “Tanti-Tantwa” community were extended benefit of Scheduled Castes pursuant to Resolution dated 01.07.2015 – Action of State is found to be mala fide and de hors constitutional provisions – State cannot be pardoned for mischief done by it – Depriving members of Scheduled Castes covered by lists under Article 341 of Constitution is a serious issue – Any person not deserving and not covered by such list if extended such benefit for deliberate and mischievous reasons by State, cannot take away benefit of members of Scheduled Castes – Such appointments would under law on findings recorded would be liable to be set aside – However, as Court has found fault with conduct of State and not of any individual member of “Tanti-Tantwa” community, Court do not wish to direct that their services may be terminated or that recovery may be made for illegal appointments or withdrawal of other benefits which may have been extended. (Para 39)
Facts of the case:
These two appeals assail the correctness of Judgment and Order dated 3rd April, 2017 passed by Division Bench of the Patna High Court whereby a group of four (4) writ petitions and one Letters Patent Appeal were decided by a common judgment dismissing all the five cases. Challenge in writ petitions and the appeal before the Division Bench of the High Court was to a Notification dated 1st July, 2015, whereby State Government had passed a resolution based upon consideration of recommendations by State Backward Commission which had recommended that in list of Extremely Backward Classes published under Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991, caste “Tanti-Tantwa” recorded at Serial No.33 be deleted and the said “Tanti-Tantwa” be merged in Scheduled Castes list with the caste 'Pan/Sawasi' mentioned at Serial No.20 so that they could get benefit of Scheduled Castes.
Findings of Court:
High Court fell in serious error in upholding said Notification on a completely wrong premise without referring to Article 341 of Constitution.
Result : Appeals allowed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Ms. Indira Jaisingh, Sr. Adv. Mr. Deepak Jain, Adv. Mr. K.b. Deepak, Adv. Mr. Vaibhav Manu Srivastava, AOR Ms. Jaspreet Aulakh, Adv. Ms. Anoushka Singh, Adv. Ms. Dashampreet Kaur, Adv. Ms. Twinkle Gupta, Adv. Mr. Sajal Gupta, Adv.
For the Respondent(s): Mr. Manish Kumar, AOR Mr. Shivam Singh, Adv. Ms. Shaswati Parhi, Adv. Mr. Suyas Vyas, Adv. Mr. Divyansh Mishra, Adv. Ms. Bahul Sharma, Adv. Mr. Shyamal Kumar, AOR Mr. Bittu Singh, Adv. Mr. Prakash Singh, Adv. Mr. Vinay Ojha, Adv. Mr. Vishwajit Singh, Adv. Mr. Rakesh Kumar, Adv. Mr. Jasprit Singh Rai, Adv. Ms. Sukhdip Kaur, Adv. Ms. Monica Sharma, Adv. Mr. Navin Prakash, AOR Mr. Amrish Kumar, AOR Mr. Anilendra Pandey, AOR Mr. C.p.singh, Adv. Mr. Rajeev Kumar Ranjan, Adv. Ms. Priya Kashyap, Adv. Mr. Salman Khurshid, Sr. Adv. Ms. Lubna Naaz, AOR Mr. Zafar Khurshid, Adv. Mr. Amit Singh Chauhan, Adv. Mr. Mohit Kochhar, Adv. Mr. Amrish Kumar, AOR Mr. Neeraj Shekhar, AOR Mr. Amrendra Singh, Adv. Mr. Ram Bachan Choudhary, Adv. Mr. Ramendra Vikram Singh, Adv. Mrs. Kshama Sharma, Adv. Mr. Jayesh Gaurav, Adv. Mr. Ishwar Candra Roy, Adv. Ms. Diksha Ojha, Adv. Mr. Ranjan Nikhil Dharnidhar, AOR
For the Appellant(s) : Ms. Indira Jaisingh, Sr. Adv. Mr. Deepak Jain, Adv. Mr. K.b. Deepak, Adv. Mr. Vaibhav Manu Srivastava, AOR Ms. Jaspreet Aulakh, Adv. Ms. Anoushka Singh, Adv. Ms. Dashampreet Kaur, Adv. Ms. Twinkle Gupta, Adv. Mr. Sajal Gupta, Adv.
For the Respondent(s): Mr. Manish Kumar, AOR Mr. Shivam Singh, Adv. Ms. Shaswati Parhi, Adv. Mr. Suyas Vyas, Adv. Mr. Divyansh Mishra, Adv. Ms. Bahul Sharma, Adv. Mr. Shyamal Kumar, AOR Mr. Bittu Singh, Adv. Mr. Prakash Singh, Adv. Mr. Vinay Ojha, Adv. Mr. Vishwajit Singh, Adv. Mr. Rakesh Kumar, Adv. Mr. Jasprit Singh Rai, Adv. Ms. Sukhdip Kaur, Adv. Ms. Monica Sharma, Adv. Mr. Navin Prakash, AOR Mr. Amrish Kumar, AOR Mr. Anilendra Pandey, AOR Mr. C.p.singh, Adv. Mr. Rajeev Kumar Ranjan, Adv. Ms. Priya Kashyap, Adv. Mr. Salman Khurshid, Sr. Adv. Ms. Lubna Naaz, AOR Mr. Zafar Khurshid, Adv. Mr. Amit Singh Chauhan, Adv. Mr. Mohit Kochhar, Adv. Mr. Amrish Kumar, AOR Mr. Neeraj Shekhar, AOR Mr. Amrendra Singh, Adv. Mr. Ram Bachan Choudhary, Adv. Mr. Ramendra Vikram Singh, Adv. Mrs. Kshama Sharma, Adv. Mr. Jayesh Gaurav, Adv. Mr. Ishwar Candra Roy, Adv. Ms. Diksha Ojha, Adv. Mr. Ranjan Nikhil Dharnidhar, AOR
Table of Contents
2. Whether the State Government possesses competence to amend the Scheduled Castes list or if such modifications require legislation enacted by Parliament. (Para 5 , 25 , 26 , 32 , 33 )
3. The State cannot alter the Presidential Order under Article 341; synonymity does not grant the State power to amend the list without Parliamentary law. (Para 12 , 13 , 36 , 37 , 38 )
4. Amendments, additions, or deletions to the Scheduled Castes list specified under Article 341 can only be made by law enacted by Parliament. (Para 11 , 12 )
5. Notification quashed; candidates appointed under the illegal SC quota to be accommodated in the Extremely Backward Classes category and seats returned to the SC quota. (Para 39 , 40 , 41 , 42 )
6. Who has the authority to amend the Scheduled Castes list specified under Article 341?
Only the Parliament has the authority to include or exclude any caste, race, or tribe from the Scheduled Castes list through a law enacted by Parliament. A notification issued under Article 341 cannot be varied by any subsequent notification. (Para 11 , 12 )
7. Can a State Government merge a caste into the Scheduled Castes list by treating it as a synonym?
No. Regardless of whether a caste is synonymous or an integral part of an existing entry, any inclusion or exclusion from the Scheduled Castes list must be done by law made by Parliament, not by State notification. (Para 36 )
8. Does the recommendation of a State Backward Commission bind the State regarding Scheduled Caste status?
No. While a State Commission may recommend changes to the Extremely Backward Classes list, it has no jurisdiction to recommend inclusions in the Scheduled Castes list, and the State cannot implement such recommendations due to constitutional prohibitions. (Para 37 )
9. What is the remedy for appointments made based on an illegal State notification extending Scheduled Caste benefits?
Such appointments are legally unsustainable. However, if the State acted mala fide, the court may allow candidates to be accommodated in their original category (e.g., Extremely Backward Classes) without termination or recovery, while returning the reserved seats to the Scheduled Castes quota. (Para 39 , 42 )
JUDGMENT :
Vikram Nath, J.
Application(s) for intervention/impleadment is/are allowed.
2. Leave granted in SLP (CIVIL) No. 18294 of 2021.
3. These two appeals assail the correctness of the judgment and order dated 3rd April, 2017 passed by the Division Bench of the Patna High Court whereby a group of four (4) writ petitions and one Letters Patent Appeal were decided by a common judgment dismissing all the five cases. The challenge in the writ petitions and the appeal before the Division Bench of the High Court was to a Notification dated 1st July, 2015, whereby the State Government had passed a resolution based upon consideration of recommendations by the State Backward Commission which had recommended that in the list of Extremely Backward Classes published under the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991, the caste "Tanti-Tantwa" recorded at Serial No.33 be deleted and the said "Tanti-Tantwa" be merged in the Scheduled Castes list with the caste 'Pan/Sawasi' mentioned at Serial No.20 so that they could get benefit of the Scheduled Castes. The operative part of the Resolution as contained in the aforesaid Notification dated 01.07.2015 is reproduced hereunder in the original Hindi language:
4. The challenge in the writ petitions and the LPA before the Division Bench was to the second part of the said Resolution quoted above whereby "Tanti-Tantwa" caste was sought to be merged with Entry-20 of the Scheduled Castes list namely, the caste of 'Pan/Sawasi' and to extend all benefits of the Scheduled Castes.
5. The challenge was mainly on the ground that the State Government had no competence/ authority/power to add a caste or sub-caste to any entry in the Scheduled Castes list notified under the Presidential Order under Article 341 of the Constitution of India. Once the list under the Presidential Order is published, thereafter, any amendment, addition, deletion or modification to the said list can be made only by law enacted by Parliament and not otherwise. Before the High Court, the respondent-State of Bihar as also other private respondents took up a plea that the impugned Notification dated 01.07.2015 does not meddle with the Presidential Order and the list published thereunder but, in fact, it was only that "Tanti-Tantwa" were one and the same as 'Pan/Sawasi' except that they had the special title within the caste of 'Pan/Sawasi' and were being referred to as "Tanti-Tantwa" in the State of Bihar and, therefore, it was not a case of alteration of the list but only of clarification. It was also submitted by the respondents before the High Court that the State Government was bound by the recommendations made by the State Backward Commission and had, therefore, rightly deleted "Tanti-Tantwa" from the list of Extremely Backward Classes and merged with the Entry-20 of 'Pan/Sawasi' in the list of Scheduled Castes published in 1976.
6. The High Court accepted the submissions of the respondents, as noted above and, accordingly, dismissed the writ petitions as also the LPA, filed by the appellants vide impugned judgment dated 03.04.2017.
7. It is this order of the High Court dated 3rd April, 2017 which is under challenge in the present two appeals.
8. We have heard Smt. Indira Jai Singh, learned Senior Counsel appearing for the appellants in both the appeals, Sri Ranjeet Kumar, learned Senior Counsel for the respondent-State of Bihar, Sri Salman Khurshid, Sri Rakesh Dwivedi and Sri V. Giri, learned Senior Counsel for the intervenors and Ms. Aishwarya Bhati, learned Additional Solicitor General for the Union of India.
9. We will now deal with the following aspects in order to arrive at a just and proper conclusion.
(1) What the Constitution of India provides regarding preparation of list for Scheduled Castes for different States.
(2) How a list declared under the Presidential Order can be altered, modified or amended.
(3) What does the Constitution provide reg
