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IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)
S.R. Krishna Kumar, J.
Parushuram - Appellant
Versus
Deputy Commissioner And Chairman, District Caste Verification Committee, Dharwad - Respondent
Writ Petition No. 65002 of 2011
Decided On : 14-09-2020
clarificatory, elucidatory, declaratory or explanatory - Scheduled Tribe - The Constitution (Scheduled Tribes) Order (Amendment) Act, 2012 - The Constitution (Scheduled Tribes) Order (Amendment) Act, 2012 (Annexure L) to the Constitution (Scheduled Tribes) Order, 1950 whereby in Entry No.37 of Part VI relating to State of Karnataka, the word Medara is inserted after the words Meda in the very same Entry No.37 - The Amendment Act, 2012 is merely a clarificatory, elucidatory, declaratory or explanatory amendment which is retrospective in nature and operates retrospectively and relates back to the date of the original Presidential Notification of the year 1950
Fact of the Case:
The petitioner, belonging to the Medara community, sought quashing of an order that held he did not belong to a scheduled tribe. The petitioner produced evidence to support his claim, including a caste certificate, school leaving certificates, and government notifications recommending inclusion of Medara as a synonym to Meda community. The petitioner's appointment on compassionate grounds was contingent on his scheduled tribe status, which was disputed by the authorities.
Finding of the Court:
The court found that the Amendment Act, 2012, which inserted the word Medara after Meda in Entry No.37 of Part VI of the Constitution (Scheduled Tribes) Order, 1950, was a clarificatory, elucidatory, declaratory, or explanatory amendment that operated retrospectively. The court declared the petitioner to belong to the Scheduled Tribe, Medara, with retrospective effect from the date of the original Presidential Order in 1950. The impugned orders were quashed, and the authorities were directed to enter the petitioner's name as belonging to the scheduled tribe in all his service records.
Issues: i) Whether a clarificatory, elucidatory, declaratory or explanatory amendment to an Act is prospective or retrospective? ii) What is the scope, ambit and amplitude of Articles 341 and 342 of the Constitution of India? iii) Whether a clarificatory, elucidatory, declaratory or explanatory amendment by a Law of the Parliament exercising powers under Articles 341(2) or 342(2) of the Constitution of India to the original constitution (Scheduled Tribes) Presidential Order of the year 1950 is prospective or retrospective? iv) Whether The Constitution (Scheduled Tribes) Order (Amendment) Act, 2012 (Annexure L) to the Constitution (Scheduled Tribes) Order, 1950 whereby in Entry No.37 of Part VI relating to State of Karnataka, the word Medara is inserted after the words Meda in the very same Entry No.37 is prospective or retrospective?
Ratio Decidendi: A clarificatory, elucidatory, declaratory or explanatory statutory amendment operates retrospectively and is retrospective in nature. A Presidential Order and Notification issued under Articles 341(1) and 342(1) of the Constitution of India can be varied, amended, altered or modified only by a Law by the Parliament exercising powers under Articles 341(2) and 342(2) of Constitution of India. A clarificatory, elucidatory, declaratory or explanatory amendment by a Law of the Parliament exercising powers under Articles 341(2) or 342(2) of the Constitution of India varying the original Presidential Order and Notification of the year 1950 is retrospective in nature and relates back to the date of the original Presidential Order and Notification of the year 1950. The Constitution (Scheduled Tribes) Order (Amendment) Act, 2012 (Annexure L) to the Constitution (Scheduled Tribes) Presidential Order, 1950 whereby in Entry No.37 of Part VI relating to State of Karnataka, the word Medara is inserted after the words Meda in the very same Entry No.37 is retrospective in nature and the said amendment relates back to the date of the original Presidential Order and Notification of the year 1950.
Final Decision: The impugned orders were quashed, and the authorities were directed to enter the petitioner's name as belonging to the scheduled tribe in all his service records. The petitioner was declared to belong to the Scheduled Tribe, Medara, with retrospective effect from the date of the original Presidential Order in 1950. The State government was directed to implement and give effect to the decision of the Full Bench in the case of Jayanna vs Deputy Commissioner, (2013) 1 KarLJ 177 (FB) forthwith immediately in respect of all persons belonging to scheduled castes/scheduled tribes by issuing/passing such appropriate notifications, orders or directions.
JUDGMENT
S.R. Krishna Kumar, J. - In this petition, petitioner seeks quashing of the impugned order at Annexure F dated 02.12.2008 passed by the 1st respondent-deputy commissioner and the impugned order at Annexure G dated 16.06.2011 passed by the 4th respondent-appellate authority and for other relief s.
2. Shorn of unnecessary details, the brief facts giving rise to the present petition are as follows:
Petitioner claims that he belongs to Meda community which is a scheduled tribe as notified in Entry No.37 of Part VI of The Constitution (Scheduled Tribes) Order, 1950 (Annexure-K) issued under Article 342(1) of the Constitution ofindia. In order to substantiate his contention, petitioner has produced his caste certificate at Annexure B, schoolleaving certificate at Annexure C, caste certificate of his sister at Annexure D and schoolleaving certificate of his father at Annexure E.
Petitioner has also produced the report of the National Commission of Scheduled Tribes at Annexure H dated 28-11-2008 and the Notification at Annexure J dated 5-6-2008 issued by the state government recommending inclusion/insertion of Medara as a synonym and equivalent to Meda community in the State of Karnataka. So also, petitioner has produced as Annexure L, copy of the central government gazette notification dated 31.05.2012 containing The Constitution (Scheduled Tribes) Order (Amendment) Act, 2012 to the Constitution(Scheduled Tribes) Order, 1950 whereby in Entry No.37 of Part VI relating to State of Karnataka, the word Medara is inserted after the words Meda in the said entry. Pursuant thereto, the State Government has also issued a notification dated 03.07.2012 at Annexure M by inserting Medara after Meda . As per this notification, the state government has clearly declared and clarified that all the benefits granted and given to Meda would be applicable and available to Medara also.
Upon the retirement of his father as section supervisor in the office of respondent No.3, petitioner was appointed on compassionate ground vide appointment order at Annexure A dated 22.09.1997. Pursuant to petitioner s request to the respondent No.3 to enter his name in the service records as belonging to a Scheduled Tribe based upon the aforesaid documents, the respondent No.3 referred the matter to the 1st respondent-caste verification committee for verification. It is contended that without verifying the relevant records and the notification, respondent No.1 passed the impugned order at Annexure F holding that the petitioner does not belong to a scheduled tribe and that the caste certificate issued in his favour was not a valid certificate on the erroneous ground that the petitioner s father is a Medara and not Meda and that since the word, Medara does not find a place in Entry No.37, the petitioner did not belong to a scheduled tribe.
Aggrieved by the impugned order at Annexure F, the petitioner preferred an appeal before respondent No.4-appellate authority under Section 4(d)(2) of the Karnataka SC/ST and other BC (Reservation of Appointments, etc.) Act, 1990(for short, the Act ). By impugned order at Annexure G dated 16.06.2011, respondent No.4-appellate authority dismissed the appeal preferred by the petitioner and confirmed the order passed by 1s t respondent.
Aggrieved by the impugned orders at Annexures-F and G passed by the respondents No.1 and 4 respectively, petitioner is before this Court by way of the present petition.
3. I have heard the learned counsel for the petitioner and the learned counsel for respondents and perused the material on record.
4. The following points arise for consideration in this petition:
i) Whether a clarificatory, elucidatory, declaratory or explanatory amendment to an Act is prospective or retrospective?
ii) What is the scope, ambit and amplitude of Articles 341 and 342 of the Constitution ofindia?
iii) Whether a clarificatory, elucidatory, declaratory or explanatory amendment by a Law of the Parliament exercising powers unde
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