The determination of whether a particular tribe is a Scheduled Tribe is within the exclusive power of the President.

G. C. Bharuka, J.

1. In this writ application the prayer of the petitioner is for issuance of a writ of mandamus commanding upon the respondent deputy Commissioner, Gumla, to treat the members of Nagesia tribe as falling in the category of Scheduled Tribe within the meaning of the constitution (Scheduled Tribe) Order, 1950 (hereinafter the Order only)and to grant them all the privileges to which the members of the Scheduled tribe are entitled to.

2. The petitioner claims to be a member of Nagesia tribe of the district of Gumla. His grievance is that though in the adjoining districts of Lohardaga and Palamau, Nagesia is treated as scheduled tribe but the said privilege has been denied to the petitioner and to the other members of his tribe by the respondent Deputy Commissioner on the plea that in the schedule to the Order Nagesia has not been included as one of the tribes.

3. Mr. D. N. Sinha, learned counsel appearing for the petitioner, in support of the claim made in this writ petition, has drawn our attention to various circumstances and documents, which, according to him are sufficient for accepting the Nagesia to be one of the Scheduled Tribes for all constitutional purposes. He has also placed reliance on a decision of the supreme Court in the case of Bhaiya Ram Minda V/s. Anirudh Patar and others, AIR 1971 SC 2533 and on a Bench decision of this Court in the case of Shyam Sunder Nag and others V/s. State of Bihar and others, 1987 BLT (Rep) 222.

4. A counter-affidavit has been filed on behalf of the respondent deputy Commissioner. Learned counsel appearing for the State by referring to the statements made in the counter-affidavit as also by referring to the letter dated 2-12-1991 (Annexure 6) filed by the petitioner, has submitted that admittedly Nagesia tribe does not find place in the schedule to the Order referred to above and, as such, the stand of the Deputy commissioner that the members of this tribe cannot claim the relief sought for in this writ application is unassailable. According to him unless an authoritative decision as permissible in law is taken by the Government, the deputy Commissioner of his own cannot grant any benefit to the members of Nagesia tribe by treating the said tribe to be one of the scheduled tribe.

5. Mr. Sinha has referred to a Government letter dated 15-1-1986 (Annexure 1) which relates to extension of educational facilities in various tribal and non-tribal areas which were dominated by various tribes named therein including Nagesia. This Government communication per se is of no help in ascertaining as to whether Nagesia can be treated to be scheduled tribe or not because for being a scheduled tribe a class of persons should not only be aboriginal but the tribe by which they are known should also find place in the schedule to the Order. Learned counsel has further referred to an order dated 6-7-1988 which is an order passed in a case for restoration of land under Sec.71-A of the C. N. T Act. This order shows that land of one Bihari Nagesia was restored in his favour pursuant to the statutory provisions contained under the aforesaid provisions of c. N T. Act This order has been passed pursuant to the statutory provisions as contained under the special Act and is of no consequence for determination of the issue involved The powers under Sec.71-A of the said Act are not exercised because a person claiming any right there under is a member of the scheduled tribe within the meaning of the Order but is based on the statutory contemplation referrable to the tribes referred to therein. Our attention has also been drawn to a letter dated 7-1-1992 (Annexure 5) written by the Additional Collector, Gumla, to the Anchal adhikari, Raidih, asking the latter that since in Ranchi Gazetteer Kisan and Nagesia have been described as to be belonging to the same caste group, therefore, he should issue caste certificate in favour of one Ramesh ham Nagesia after necessary verification In my opinion, this