IMPORTANT POINT
No addition or modification in the Presidential Order is permissible.

JUDGMENT :

1. Petitioner claiming himself to be a public spirited person has filed this public interest petition. The grievance raised in the petition is that the respondent authorities are not recognizing ‘Majhi’ community as Scheduled Tribe category and thereby no issuing ST certificate in their favour.

2. Submission of learned Counsel for the petitioner is that the members of ‘Majhi’ community belong to ‘Santhal’ community, therefore, they are entitled for the Scheduled Tribe certificate.

3. The prayer has been opposed by learned Counsel for the respondents submitting that in view of the Presidential Order, the members of ‘Majhi’ community are not entitled to the certificate of ST category.

4. We have heard the learned Counsel for the parties and perused the record.

5. The Constitution (Scheduled Tribe) Order, 1950 issued in exercise of power conferred by clause (1) of Article 342 of the Constitution of India clearly mentions in the Schedule, different tribes in various states, which are covered by the Presidential Order. So far as the State of West Bengal is concerned, ‘Majhi’ is not covered by the Presidential Order but only ‘Santhal’ is covered.

6. It is the settled position in law that once the Presidential Order is issued, it can only be amended by the Legislature and Courts cannot assume jurisdiction to enter into enquiry to determine if any particular tribe is covered in any other tribe as indicated in the Presidential Order. It has also been settled that the State Government or any authority or the Court or Tribunal are not vested with any power to modify or vary the Scheduled Tribes order.

7. In a recent judgment in the matter of State of Maharashtra and Another vs. Keshao Vishwanath Sonone and Another reported in 2020 SCC OnLine SC 1040, Hon’ble Supreme Court has considered the earlier judgments on the point and has held that:

“47. We may notice another Constitution Bench judgment in Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, which was delivered few months after judgment of B. Basavalingappa's case, noted the ratio of judgment and reiterated that though the appellant was not a Scheduled Caste as enumerated in the Scheduled Castes Order but he belonged to another caste, which is sub-caste of Scheduled Caste, cannot be looked into. In the above case, Bhaiya Lal was elected from reserved seat. Election was challenged on the ground that Bhaiya Lal belonged to Dohar caste and was not a Chamar. Bhaiya Lal in his nomination has declared that he was member of Chamar Scheduled Caste. Election Tribunal found against the elected candidate and set aside the election. The High Court dismissed the appeal. Bhaiya Lal questioned the judgment of the High Court as well as the Election Tribunal. The case of the appellant was that he was a Dohar Chamar, which is a sub-caste of Chamar Scheduled Caste. This Court held that the claim that Dohar caste is a sub-caste of Chamar caste cannot be entertained. in paragraph 8 following has been laid down:—

“8. Incidentally, we may point out that the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in view of the Constitution (Scheduled Castes) Order, 1950. This Order has been issued by the President under Article 341 of the Constitution. Article 341(1) provides that 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 castes, races or tribes or parts of or groups within castes, races, or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. Sub-article (2) lays down that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification i