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IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (PIL) No. 1606 of 2014

WITH

I.A. No.1053 of 2015

Nishikant @ Nishikant Dubey…

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….

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Petitioner

Versus

Union of India and others

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Respondents

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CORAM:

HON'BLE MR. JUSTICE D. N. PATEL

HON'BLE MR. JUSTICE PRAMATH PATNAIK

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For the Petitioner:

M/s. S.N. Pathak, Rakesh Kr Roy, Birju Thakur

For the Respondents:

Mr. Rajesh Kumar, G.P.V

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06/Dated: 23rd February, 2015

Per D.N. Patel, J

1)

This Public Interest Litigation has been preferred with the

following prayers: -

a)

For issuance of an appropriate writ(s)/order(s)/

direction(s) upon the Respondents to include “Khetauri” &

Ghatwal/Ghatwar” Communities in the Schedule Tribe List of

Jharkhand and to treat them as Schedule Tribes on the basis of

Survey records as well as several other documents which goes

to prove that the aforesaid Communities were treated as Tribal

but because of some error on the part committed by the

Respondent Authorities these Communities have been

deprived of their valuable rights and claim to recognize as

Schedule Tribes and also for the reasons that these two

communities have been recommended by the State Govt. to

the Central Govt. for necessary action.

2)

Having heard both sides and looking to the facts and

circumstances of the case, we see no reason to entertain this Public

Interest Litigation mainly for the reasons and grounds: -

(I)

The prayer for inclusion of two communities in the list of

Scheduled Tribes, so far as the State of Jharkhand is concerned,

this can be done under Article 342 of the Constitution of India.

For ready reference, Article 342 of the Constitution of India

reads as under: -

“342. (1) The President may with respect to any State or Union

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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.”

(ii)

It is a prerogative power of His Excellency the President

of India, with respect to any State, after consultation with the

Governor thereof, to specify the tribes or tribal communities as

Scheduled Tribes, in relation to the State.

(iii)

Whenever thee is a power vested in any person, as per

the jurisprudence, there is no corresponding duty nor there is

any corresponding right vested in any one.

(iv)

Thus, when there is a power vested in His Excellency the

President of India, that does not mean that thee is a public duty

vested in anyone, nor, thee is any right vested in the public in

India. Hence, not to specify any Caste as well as Scheduled

Tribes udner Article 341 of the Constitution of India, it cannot

be said that it is a breach of public duty by Union of India,

because, power and public duty are not the same, nor are they

synonymous of each other. Unless there is a public duty or

unless there is a breach thereof, no writ of mandamus can be

issued upon His Excellency the President of India.

(v)

This Court will be extremely slow in interfering in such

type of purely administrative decision, or, purely a policy

decision of Union of India that such community or caste or tribe

should be specified as a Scheduled Tribes under Article 342 of

the Constitution of India and it is always left at the wisdom of

Union of India. There are vast ramifications of such type of

inclusion and hence, this Court will no