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PATNA HIGH COURT (FULL BENCH) (RANCHI BENCH)
R.N. SAHAY, G.S. SHARMA & P.K. DEB, JJ.
Rakesh Sarma
Vivek Bharat - Petitioners
Vs.
State of Bihar & ors. - Respondents
C.W.J.C. Nos.1377 of 1992(R) and 3403 of 1993(R)
Decided on : 1.5.1996
CONSTITUTIONAL LAW - SCHEDULED TRIBES - LOHARS - WHETHER COVERED BY ENTRY 22 PART III OF THE SCHEDULED CASTES AND SCHEDULED TRIBES ORDERS (AMENDMENT) ACT, 1976 - HELD, NO.
Fact of the Case:
The petitioners, who are 'Lohars' by caste, claimed that they are covered by entry no.22 of Part III (Bihar) of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and are entitled to the benefits available to the members of the scheduled tribe. The controversy arose after the decision of the Supreme Court in Shambhu Nath vs. Union of India and others (Civil Appeal no.4631/90 disposed of on 12th Sept.1990) wherein it was held that 'Lohars' are members of the scheduled tribe.
Finding of the Court:
The Court held that 'Lohars' are not covered by entry 22 part III of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. The Court further held that in the Hindi version of the Act, Lohar has been inadvertently mentioned and in view of conflict between English version and Hindi version, the English version shall prevail. The Court also held that the decision in Shambhu Nath's case was not meant to be applied in subsequent cases and the decisions in Hari Sharan Thakur, Lohar Utthan Mahasabha which followed Shambhu Nath's case was followed without noticing the observation that the decision was not to be taken as precedent in other cases.
Issues: 1. Whether 'Lohars' are covered by entry 22 part III of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976? 2. Whether the decision in Shambhu Nath's case was meant to be applied in subsequent cases?
Ratio Decidendi: 1. The Court held that 'Lohars' are not covered by entry 22 part III of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. The Court relied on the following grounds: a. Article 342(1) of the Constitution of India only 'tribe or tribal community or groups within the tribes or tribal communities' can be declared as Scheduled tribes in relation to the State or the Union territory, as the case may be. b. Lohars are 'blacksmith' and 'Karmakar' being an occupational group and belong to backward classes. c. The English version of the Act is authoritative and in the English version, 'Lohra' and 'Lohara' are mentioned, but 'Lohar' is not mentioned. d. The decision in Nityanand Sharma's case (1992 PLJR 535) lays down the correct law that 'Lohar' in Bihar are different from 'Lohara or Lohra' and are not covered by entry 22 of Bihar list in the Scheduled Castes Amendment Act, 1976. 2. The Court held that the decision in Shambhu Nath's case was not meant to be applied in subsequent cases. The Court relied on the following grounds: a. The Supreme Court in Shambhu Nath's case had expressly observed that 'this decision may not be taken as a precedent'. b. The Division Bench in Harishankar Thakur (supra) and the Division Bench in Lohar Utthan Mahasabha (supra) erred in taking the decision as a binding precedent.
Final Decision: The writ applications were dismissed.
R.N. Sahay, J. -A direct conflict between two sets of decisions of this Court on the interpretation of the Presidential Order issued under Article 342 of the Constitution has necessitated this reference to Full Bench. The significant question for consideration is as to whether the members of 'Lohar' caste in the State of Bihar, who are admittedly 'backward class' have right to claim the privileges available to the members of 'scheduled tribe' by virtue of the Presidential Order.
2. Article 366(25) defines 'Schedule Tribe' -which means :
"such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution."
Under Article 342 of the Constitution of India it is provided as follows: -
"Scheduled Tribes: 1. The President may with respect to any State or Union territory and where it is a State after consultation with the Governor thereof, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
2. Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
3. It is obvious from clause (2) of Article 342 that after the President has specified a 'scheduled tribe' it is only the Parliament which is competent to include in or exclude from the list of Scheduled Tribe specified in a notification under clause (1) of Article 342 of the Constitution.
4. The President of India in exercise of power under Article 342(1) of the Constitution promulgated Constitution Scheduled Tribe Order, 1950 which was amended by the Parliament from time to time. The Scheduled Castes and Scheduled Tribe Amendment Act, 1976 (Act no.108 of 1976) was passed by the Parliament on 8th September, 1976. The object of the Act was to provide for inclusion and exclusion from the list of 'Scheduled Castes' and 'Scheduled Tribes' of certain castes and tribes, for the readjustment of representation of Parliamentary and assembly constituencies insofar as such readjustment is necessitated by such inclusion or exclusion and for matters connected therewith.
Section 4 of the Act amended Constitution Scheduled Tribes Orders, 1950 and the Constitution (Andaman & Nicobar) Scheduled Tribes Order, 1959 made by the President under Article 342 of the Constitution.
5. The said Scheduled Tribe Orders was amended in the manner specified in Second schedule. Part III of the second schedule contains list of scheduled tribes in the State of Bihar. As many as 30 scheduled tribes are included in the list. Under item no. 22 of the list 'Lohara/Lohra' who are members of the scheduled tribe are included. In paragraph 16 which is in respect of West Bengal, 'Lohara' and 'Lohra' are included under item 24 of the list of West Bengal.
6. The petitioners in these cases are 'Lohars' which is recognised as backward caste in the State of Bihar. Now by virtue of the Amendment Act, 1976, they claim that they are covered by item no.22 of Part III (Bihar). As a matter of fact, the petitioner in CWJC 1377/92R was granted scheduled caste certificate by the B.D.O., Giridih in the year 1982 (Annexure-1). Later petitioner came to know that 'Lohar' caste has been declared scheduled tribe and Supreme Court in S.L.P. No.5684/90 held that 'Lohars' are members of the scheduled tribe.
In C.WJ.C. 1377/92R, the petitioner has prayed for direction to the respondents to issue certificate that the petitioner is member of scheduled tribe to enable him to apply for appointment in the quota reserved for the members of scheduled tri
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