The President is empowered to draw up a list of Scheduled Tribes in consultation with the Governors of the States. The omission of a particular sub-tribe from the list of Scheduled Tribes does not mean that they are not included in the Scheduled Tribe.

Headnote:
The Court held that Halba Koshtis are a sub-division of the Halba/Halbi tribe and are, therefore, included in the list of Scheduled Tribes under the Constitution (Scheduled Tribes) Order, 1950. The Court also held that the Government's circulars excluding Halba Koshtis from the list of Scheduled Tribes were invalid.
Fact of the Case:

The petitioners, who belong to the Halba Koshti community, challenged the Government's orders invalidating their caste certificates and excluding them from the list of Scheduled Tribes. The petitioners argued that they are a sub-division of the Halba/Halbi tribe, which is included in the list of Scheduled Tribes under the Constitution (Scheduled Tribes) Order, 1950. The Government, on the other hand, argued that Halba Koshtis are a separate caste and are not included in the list of Scheduled Tribes.
Finding of the Court:

The Court held that the Halba Koshtis are a sub-division of the Halba/Halbi tribe and are, therefore, included in the list of Scheduled Tribes under the Constitution (Scheduled Tribes) Order, 1950. The Court also held that the Government's circulars excluding Halba Koshtis from the list of Scheduled Tribes were invalid.
Issues: 1. Whether Halba Koshtis are a sub-division of the Halba/Halbi tribe? 2. Whether the Government's circulars excluding Halba Koshtis from the list of Scheduled Tribes are valid?
Ratio Decidendi: The Court held that Halba Koshtis are a sub-division of the Halba/Halbi tribe based on the following reasoning: 1. The Constitution (Scheduled Tribes) Order, 1950 does not define the term "Scheduled Tribe". 2. The President is empowered to draw up a list of Scheduled Tribes in consultation with the Governors of the States. 3. The President has prepared two lists of Scheduled Tribes, one in 1950 and the other in 1976. 4. The 1976 list includes the Halba/Halbi tribe, but does not specifically mention the Halba Koshti sub-tribe. 5. The Court held that the omission of the Halba Koshti sub-tribe from the 1976 list does not mean that they are not included in the Halba/Halbi tribe. 6. The Court relied on several decisions of the Supreme Court and High Courts, which have held that it is permissible to inquire whether a particular sub-tribe is a part of a Scheduled Tribe, even if the sub-tribe is not specifically mentioned in the list of Scheduled Tribes.
Final Decision: The Court allowed the petitions and quashed the Government's orders invalidating the petitioners' caste certificates. The Court also directed the Government to admit the petitioners to the M.B.B.S. course for the current year 1985-86, if necessary by creating supernumerary posts.

Judgment

V.A. MOHTA, J.:---A section of our people suffers for generations from social, educational, cultural and economical deprivations. Hence our Constitutions makes provides of much needed protective discrimination in their favour with the ultimate object of achieving real equality. This inevitably led to the problem of their identification. Major section of this class has been specified in the Constitution as "Scheduled Castes" and "Scheduled Tribes" Constitution does not define these terms but the president was empowered under Articles 341 and 342 of the Constitution to draw up their lists on consultation with the Governor of the State. The President did prepare two lists by the Constitution (Scheduled Caste) Order 1950 ( S.C. Order) and the Constitution (Schedules Tribes) 1950 ('ST Order). By virtue of authority conferred by these very Articles, the Parliament amended the lists by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 ('The Act"). In this and other concerned cases, we are concerned with the Scheduled Tribes "Halba/Halbi at entry No 19, para IX, Second Schedule of the Act. In the S.T. Order, Halbas from the following areas only were covered :

(1) Melghat tahsil of Amravati district.

(2) Gadachiroli and Sironcha tahsils of Chandrapur district.

(3) Kelapur, Wani and Yavatmal tahsils of Yavatlal district.

The Act removed that area restriction as a result all Halba/ Halbis in the State were included in the relevant entry.

2. The principal point that falls for consideration is whether "Halba Koshtis" is a sub-tribe of Halba/Halbi within the meaning of the entry.

3. In the list, certain sub-tribes find specific mention under the general head. In the Entry No. 19, no sub-tribe is mentioned. The first question that falls for determination, therefore, is whether it is at all permissible to hold enquiry as to whether a particular group within that tribal community is included in the general name or not. Both parties revised on several decisions in which treatment to this subject is given. In the case of (Basavalingappa v. Munichinappa)1, A.I.R. 1965 S.C. 1269 which is a first case on point, following observations are made :

"It may be accepted that it is not open to make any modifications in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also part of Caste A and, therefore, must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order [See Aray (Mala), Dakkai (Dokkalwar) etc.]. Therefore, generally speaking it would not open to any person to lead evidence to establish that case B (in example quoted above) is part of caste A notified in the Order. Ordinarily, therefore, it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the order for Voddar caste is not mentioned in brackest after the Bhovi caste in the order".

Close examination of this decision will indicate that despite these observations an enquiry as to whether the caste "Voddar" (not specifically mentioned in the S.C. Order) is the same as the caste "Bhovi" in Mysore State as mentioned in the S.C. Order was permitted and after considering evidence, it was held that there was no caste known as "Bhovi" in Mysore State as it was before 1956 and that "Voddar" was equivalent to "Bhovi".

4. In the case of (Bhaiya Lal v. Harikishan Singh)2, A.I.R. 1965 S.C. 1557, the successful candidate was a "Dohar" and not a "Chamar" and the Court declined to allow a plea to be raised that Dohar caste in some areas was recognised as a sub-caste of Chamar as the candidate was not a Chamar, in a particular Constituency and the "Dohars" are not included in the Scheduled Castes. In the case of (Parsram v. Shivchand)3, A.I.R. 1969 S.C. 597, the above two decisions have been considered and it is held that a "Mochi" in Punjab

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1985 Supreme(Bom) 231

The President is empowered to draw up a list of Scheduled Tribes in consultation with the Governors of the States. The omission of a particular sub-tribe from the list of Scheduled Tribes does not mean that they are not included in the Scheduled Tribe.

Cases Referred (3)