Advocates:
['M/S GANGADHAR TRIPATHY', '', 'M/S H N MOHAPATRA', 'A K PARIDA', 'A SAMANTRAY', 'J P TRIPATHY', 'B JALLI']

21. 03.03.2021 1. Heard Mr. H.N. Mohapatra, learned counsel for the Petitioners

and Mr. S. Palit, learned Additional Government Advocate for

the State-Opposite Parties.

2. The Petitioners have approached this Court to recognize

<Sabar, Nalua Sabar, Kela Sabar community persons in the

Scheduled Tribe (ST) category.

3. In the reply filed by Opposite Party Nos.1 and 2, it is pointed

out that in ST list for Odisha, there is no community notified as

<Sabar=, which has synonyms like <Kela=, <Nalua Kela= and

<Nalua Sabar=. Rather <Kela= and <Nalua Kela= are notified as

Scheduled Castes (SC) at Sl. No.45 of the SC list of Odisha.

There is no community notified as <Nalua Sabar=.

4. Learned counsel for the Petitioners contended that in the list

of STs notified under the Orissa Caste Certificate (SC & ST)

Rules, <Sabar= was included at Sl. No.60.

5. However, from the counter affidavit filed by Opposite Party

Nos.1 and 2, it is seen that as per the Presidential Order of 1950

for the STs titled 8The Constitution (Scheduled Tribes) Order,

1950 published in the Gazette of India on 6^th September, 19509

under S.R.O. 510, the STs relating to State of Odisha included

only 42 communities. This number rose to 62 under subsequent

W.P.(C) No.16014 of 2010

amendments. The last serial number in the first order No.42 and

<Sabar= does not find place anywhere therein. A copy of the

genuine version of the amended list shows that the entry at Sl.

No.60 reads <Shabar=, <Lodha= and not <Sabar=. It is

categorically stated that there is no order issued before 2009

either by the Central Government or by the State Government

showing Kela, Sapua Kela, Nalua Kela, Nalua Sabar etc. as

synonymous with Sabar. It is stated that Kela (since 1950),

Sapua Kela and Nalua Kela (since 2002) are in the SC list of

Odisha. In fact, there is no such Rule called <Orissa Caste

Certificate (SC & ST) Rule, 2011 published by the State

Government mentioning <Sabar= or <Lodha= under Sl. No.60 as

STs.

6. Learned counsel for the Petitioners sought to submit that dthe

difference is only phonetifical and that <Sabar= is usually

pronounced as <Shabar=, and therefore, it is, in fact, one and the

same community.

7. The Court is unable to agree with the above submission.

There is a scope of judicial review in the matter of directing

inclusion of a particular community in the list of STs in <the

Constitution (Scheduled Tribes) Order, 1950 is extremely

limited. In the decision in Nityananda Sharma and another v.

State of Bihar, (1996) 3 SCC 576 the Supreme Court held as

follows :

<It is for the Parliament to amend the law and the

Schedule and include in and exclude from the

Schedule, a tribe or tribal community or part of

or group within any tribe or tribal community for

the State, District or region and its declaration is

conclusive. The Court has no power to declare

synonyms as equivalent to the Tribes specified in

the Order or include in or substitute any

caste/tribe etc. It would thus be clear that for the

purpose of the Constitution <Scheduled Tribes=

defined under Article 366 (25) as substituted

under the Act, and the second Schedule there

under are conclusive. Though evidence may be

admissible to a limited extent of finding out

whether the community which claims the status

as Scheduled Caste or Scheduled Tribe, was in

fact, included in the concerned Schedule, the

Court is devoid of power to include in or exclude

from or substitute or declare synonyms to be of a

Scheduled Caste or Scheduled Tribe or parts

thereof or group of such caste or tribe.=

8. In that view of the matter, the Court is unable to accede to the

prayer of the Petitioners that <Sabar= should be considered as

included in the list of STs notified by <the Constitution

(Scheduled Tribes) Order, 1950.

9. The writ petition is accordingly dismissed.

10. Learned counsel for the Petitioners submits that the

Peti