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2004 Supreme(Raj) 604
Rajasthan High Court
Honble N.P. GUPTA, J.
Maya Devi Dagala - Appellant
Versus
State of Rajasthan & Ors. - Respondents
S.B. Civil Writ Petition No. 2589 of 2004
Decided On : July 07, 2004
N.L. Joshi, for Petitioner
Headnote:Constitution of India, Articles 341 and 342 – Determination of identity for conferment of social status as Scheduled Tribe – Held – Any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of scheduled tribes issued under clause (1) of Article 342, only by the Parliament by law and by no other authority – It is not permissible at all to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned entry in the Constitution (Scheduled Tribes) Order, 1950. (Para 18 & 22)
The first thing required to be done by the State Government is to undertake a survey, and prepare an appropriate data base, and now in view of the Election Commission having issued Photo Identity Cards to have the data base with the Photo Identity Card of the population which belongs to the specific reserved class in specific area on the basis of the parameters like food habits, dress, social customs, religious faiths, occupation, educational level etc. (or on such basis on which a caste is identified), so also to maintain a complete up date of the data base by having regular updation based on the new births, deaths, and migrations, so as to ensure, with migration if that particular caste is not reserved caste in migrated area so that one may not get the benefit. Secondly, it is high time that such survey is re-undertaken with regular intervals for the purpose of ensuring that the persons and the families identified to be belonging to a particular caste, or community, or tribe are continuing to suffer the disadvantages on account of their birth mark, food habit, dress, social customs religious faith, occupation, and educational level etc. on account of which they were given the special protection, and in case of the persons, or families, or castes who are identified to be not so disadvantaged in any particular area, steps should be taken for issuance of appropriate amendment by the Parliament for their exclusion from the protected field. (Para 22)
(2). The petitioner has described herself as Maya Devi Dagala wife of Topan Ram Dagala. With this description, it is alleged, that the petitioner belongs to the caste uk;d and also claims that she belongs to Scheduled Tribe. Accordingly, she applied for obtaining a certificate to that effect, vide application Annexure-1, but then, certificate Annexure-5 has been issued certifying her to be belonging to Scheduled Caste.
(3). The contention of the learned counsel for the petitioner is, that according to the Annexure-6, the caste uk;d is included in the Scheduled castes at item No. 57, while uk;d was included in Scheduled Tribes, which was subsequently de- notified in the year 1964, and then it was included in the list of `Backward Castes. It is contended that the term uk;d has been spelt in various categories in different spelling, and thus, according to the learned counsel, it stands included in every category, being Scheduled Castes, Scheduled Tribes and Backward Castes, such state of affairs is arbitrary, and since the petitioner claims to be belonging to Scheduled Tribe, she should have been issued certificate of Scheduled Tribe.
(4). I have considered the submissions. Since the subject of Schedule Caste and Schedule Tribe is covered by the provisions of Article 341 and 342 of the Constitution, I may gainfully quote the two articles, which read as under:-
Article 341 of the constitution
(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 a public notification, specify the 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.
(2) 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, on part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Article 342 of the constitution
(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 a public notification, specify the tribes or tribal communities or parts of or groups within tribes ir 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 caste, race or tribe, on part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
(5). A perusal of the aforesaid articles show that according to Article 341 of the Constitution of India, it is the President of India, who, in accordance with those provisions, specifies the Castes, races, or tribes, or parts of or groups, within castes, races, or tribes, shall be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. Likewise, according to Article 342, it shall be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. According to sub-Article (2), such list can be amended or varied by the Parliament from time to time, but save, as provided in that Article, it can not be varied by any subsequent notification.
(6). There has been catena of cases of Honble the Supreme Court, on the interpretation of these Articles 341 and 342.
(7). The Constitution Bench of Honble the Supreme Court Bhaiyalal vs. Harikishan Singh (1), held as under:-
``It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit
