REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4096 of 2020
(arising out of SLP(C)No.15044 of 2020)
THE STATE OF MAHARASHTRA & ANR. ...APPELLANT(S)
VERSUS
KESHAO VISHWANATH SONONE & ANR. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.4098-4100 of 2020
(arising out of SLP(C)No.15045-15047 of 2020)
THE STATE OF MAHARASHTRA & ANR. ...APPELLANT(S)
VERSUS
ADIM GOWARI SAMAJ VIKAS MANDAL & ORS....RESPONDENT(S)
WITH
CIVIL APPEAL NO. 4097 of 2020
(arising out of SLP(C)No.7901 of 2019)
ZANAKLAL ...APPELLANT(S)
VERSUS
ADIVASI GOND GOVARI (GOWARI)
SEWA MANDAL & ORS. ...RESPONDENT(S)
1
AND
CIVIL APPEAL NO. 4101 of 2020
(arising out of SLP(C) Diary No.17886 of 2020)
UNION OF INDIA ...APPELLANT(S)
VERSUS
ADIVASI GOND GOVARI (GOWARI)
SEVA MANDAL & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. These appeals filed against the common judgment
dated 14.08.2018 of Bombay High Court, Nagpur Bench
raise the issues of seminal importance pertaining to
a Scheduled Tribe namely “Gond Govari” in the State
of Maharashtra included in the Constitution
(Scheduled Tribes) Order, 1950 as amended by
Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976 as applicable in the State of
Maharashtra.
3. The Bombay High Court vide judgment dated
14.08.2018 allowed four writ petitions being Writ
2
Petition No. 1742 of 2007, Writ Petition No.4779 of
2008, Writ Petition No. 4032 of 2009 and Writ
Petition No.1680 of 2012. We may notice in brief the
claim of the writ petitioners in the aforesaid writ
petitions.
Writ Petition No.1742 of 2007 - Keshao Vishwanath
Sunone Vs. State of Maharashtra and Ors.
4. Keshao Vishwanath Sunone (hereinafter referred to
as “Sunone”) claimed himself to belong to Gowari
caste. The petitioner’s claim in the writ petition
is that Sunone belong to Gowari caste, which comes
under the Scheduled Tribes as there is no Gond Govari
caste in existence. Sunone was appointed as
Technical Assistant on 29.08.1983. The caste
certificate of Gond Govari Scheduled Tribe was issued
to Sunone on 03.07.1986. The caste certificate of
Sunone was sent for verification of caste. The Caste
Scrutiny Committee vide its order dated 13.01.2007
invalidated the caste certificate of Sunone.
Challenging the order of Caste Scrutiny Committee
dated 13.01.2007, writ petition was filed with
following prayers:-
3
“a) issue appropriate writ, order or
directions thereby quash and set
aside an order passed by the
Scheduled Tribe Certificate Scrutiny
Committee, Amravati Division,
Amravati dated 13.1.2007;
b) stay and effect and operation of the
impugned order dated 13.1.2007
passed by the Scheduled Tribe
Certificate Scrutiny Committee,
Amravati Division, Amravati during
the pendency of this petition and to
protect the services of the
petitioners;
c) grant any other relief as this
Hon’ble Court deems fit and proper
in the facts and circumstances of
the case.”
Writ Petition No.4779 of 2008 - Adivasi Gond Govari
(Gowari) Sewa Mandal through its President Vs. State
of Maharashtra and Ors.
5. The writ petitioner claimed to be an association
working for the welfare of people belonging to Gond
Govari community. The petitioner association had
filed a writ petition questing the caste validity
certificate issued to respondent Nos.4 to 19 as
Scheduled Tribe (Gond Govari). Petitioners’ case was
that without conducting an enquiry, the caste
validity certificate was issued. The petitioners’
case further was that the validity certificate issued
4
as Gond Govari Scheduled Tribe was wrongly issued
since the respondents belonged to Gowari community
and they did not belong to Gond Govari community.
6. In the writ petition, the petitioner has prayed
for quashing the caste validity certificates issued
to respondent Nos.4 to 19. A further direction was
sought that Caste Scrutiny Committee, Nagpur not to
issue caste validity certificate pertaining to Gond
Govari Scheduled Tribe and the detailed inquiries be
conducted. It was further prayed that Commissioner,
Tribal Research and Training Institute, Pune and
Caste Scrutiny Committee Nagpur be directed to
conduct full place enquiry in the relation to Gowari
and Gond Govari entries.
Writ Petition No.4032 of 2009 - Adim Gowari Samaj
Vikas Mandal and Ors. Vs. State of Maharashtra and
Anr.
7. The petitioner association registered in 2004
claimed to be working in the field of betterment and
welfare of members of people belonging to Gowari
community. In the writ petition, reference was made
5
to the Government Resolution dated 24.04.1985,
whereby the Government issued guidelines for taking
precautionary measures while issuing the tribe
certificate. Alongwith the Government Resolution, a
chart was issued containing a comparative study,
which relate to members of actual Scheduled Tribes
and other castes having similar nomenclature. The
writ petition contains a detailed reference to a
subsequent Government Resolution dated 15.06.1995
where under the Government Resolution of the State of
Maharashtra, Gowari was treated to be other backward
community, special backward class with 2%
reservation. In the writ petition, validity of the
Government Resolution dated 24.06.1985 prescribing
the guidelines by way of affinity test to claim the
Gowari community was challenged.
Writ Petition No.1680 of 2012 - Adiwasi Gond Govari
(Gowari) Seva Mandal Vs. Union of India & Ors.
8. By notification dated 16.06.2011 issued by the
Government of India, Gowari community was included in
the other backward class category from common Central
List in respect of State of Maharashtra. The writ
6
petitioner claimed that Gowari community and its
members have been included in Entry No.18 of the
Scheduled Tribes order in relation to State of
Maharashtra. The direction was sought to instruct
the Sub-Divisional Magistrate to issue the caste
certificates to the persons belonging to Gowari
community as Scheduled Tribes. The writ petitioner
has also challenged the Government Resolutions dated
24.04.1985, 13.06.1995 and 15.06.1995. In the writ
petition, following prayers were made:-
“(a) issue appropriate writ, order or
direction in the nature of mandamus
thereby quash and set aside impugned
Gazette Notification dated
16.06.2011 (Annexure No.9) issued by
Government of India as
unconstitutional as regards Gowari
community and further delete the
entry of Gowari community from the
common central list of OBC category
in respect of State of Maharashtra;
(b) by issuance of appropriate writ,
order or direction remove the
anamoly from the Entry 18 of Para 19
of the Scheduled Castes and
Scheduled Tribes Order, 1976 as
regards Gond Gowari community;
(c) by issuance of appropriate writ,
order or direction declare that the
Gowari community and its members
have been included in the Entry 18
of Para 19 of Scheduled Castes and
7
Scheduled Tribes Order, 1976;
(d) by issuance of appropriate writ,
order or direction in the nature
mandamus direct the State Government
and instruct Sub Divisional Offices,
Magistrates throughout the State to
issue caste certificates to the
people belonging to Gowari community
being Scheduled Tribe category
people and further direct Cast
Scrutiny Committee to issue validity
certificates to Gowari Community
people being Scheduled Tribe;
(e) issue appropriate writ, order or
direction in the nature of mandamus,
thereby quash and set aside the
Govt. Resolution, dt.24.4.1985,
13.6.1995, & 15.6.1995 being
illegal, at Annexure Nos.10, 11 &.
12;
(f) grant any other relief which may be
deemed fit and proper in the facts
and circumstances of the case.”
9. The Division Bench vide its impugned judgment
dated 14.08.2018 allowed the writ petitions by
following order:-
“ORDER
(1) We hold and declare that the tribe
Gond Gowari was completely extinct before
1911 and no trace of it was found either
in the Maratha Country of C.P. and Berar
or in the State of Madhya Pradesh prior to
1956.
(2) We hold and declare that there did not
8
exist any tribe as Gond Gowari as on 29-
10-1956, i.e. the date of its inclusion as
28th Item in Entry No. 18 of the
Constitution (Scheduled Tribes) Order,
1950 in relation to the State of
Maharashtra and it was Gowari community
alone shown as Gond Gowari, therein.
(3) The tribe Gond Gowari shown as 28th
Item in Entry No. 18 of the said Order is
not a sub-tribe of Gond and, therefore,
the claim for its validity cannot be
tested on the basis of the guidelines in
respect of affinity test specified in the
Government Resolution dated 24-4-1985.
(4) The people belonging to Gowari
community in the State of Maharashtra
cannot be denied the benefits of the
Scheduled Tribes, merely because the
Gowari community is shown in the list of
Special Backward Classes in relation to
the State of Maharashtra in the Government
Resolutions dated 13-6-1995 and 15-6-1995
and as Other Backward Class category in
the Gazette Notification dated 16-6-2011
issued by the Government of India in the
common Central list in respect of the
State of Maharashtra.
(5) The order dated 13-1-2007 passed by
the Scheduled Tribes Certificate Scrutiny
Committee at Amravati, invalidating the
claim of the petitioner-Keshao s/o
Vishwanath Sonone in Writ Petition No.
1742 of 2007, is hereby quashed and set
aside. The said matter is remanded back to
the Scrutiny Committee to decide it afresh
in the light of the decision of this
Court.
(6) We direct the Registry of this Court
to get the entire old record of Census
Reports, Parliamentary Debate, Gazetteers,
9
etc., called for the purposes of these
petitions from the Library, scanned,
within a period of six weeks, as it has
worn out. The record is very important and
it needs to be preserved, as it is also
not available on the 'Net'.”
10. Aggrieved by judgment of the Division Bench, the
State of Maharashtra has filed Civil Appeals arising
out of SLP (C) No.15044 of 2020 and SLP (C) Nos.
15045-15047 of 2020. Union of India has also filed
Civil Appeal arising out of Diary No.17886 of 2020 as
well as one Zanaklal Bhaisaku Mangar, who was
respondent No.15 in Writ Petition No.4779 of 2008
filed by Adivasi Gond Govari (Gowari) Sewa Mandal has
filed SLP (C) No.7901 of 2019 in this Court.
11. We have heard Shri Shyam Divan, learned senior
counsel, Shri Ravindra Keshavrao Adsure, learned
counsel for the appellant, State of Maharashtra. Shri
Sanjay Jain, learned Additional Solicitor General for
the appellant, Union of India and Shri C.U. Singh,
learned senior counsel for the appellnt-Zanaklal
Bhaisaku Mangar. Shri Mukul Rohatgi, learned senior
counsel has appeared for the respondents. We have
also heard Ms. Bansuri Swaraj, learned counsel for
10
the respondents and other learned counsel.
12. Shri Shyam Divan, learned senior counsel submits
that the High Court committed error in tinkering with
the Entries under the Constitution (Scheduled Tribes)
Order, 1950 which could only be done by a
Parliamentary Act as per constitutional provision of
Article 342 sub-clause (2). A detailed procedure is
to be followed to amend Constitution (Scheduled
Tribes) Order, 1950 which could not have been done by
the High Court as has been done in the impugned
judgment. It is submitted that Constitution Bench in
State of Maharashtra Vs. Milind and Ors., (2001) 1
SCC 4 has held that Entries in Constitution
(Scheduled Tribes) Order, 1950 can only be amended by
an Act of Parliament under Article 342(2) and State
Governments or Courts or other Authorities or
Tribunals cannot hold inquiry so as to see whether
any caste should be considered as included in
Constitution (Scheduled Tribes) Order, 1950, where it
is not specifically mentioned in the same.
13. Shri Divan submits that Scheduled Tribe, namely,
11
'Gond Gowari' which is included in Entry 18 of PartIX of Constitution (Scheduled Tribes) Order, 1950 do
exist and is clearly different from caste 'Gowari'.
The High Court was in error in holding that Tribe
'Gond Gowari' is an extinct Tribe which is not in
existence after 1911. The Entry 'Gond Gowari' being
maintained in Constitution (Scheduled Tribes) Order,
1950 and was not deleted even after several
Parliamentary Acts were passed to amend the
Constitution (Scheduled Tribes) Order, 1950. The
High Court clearly erred in holding that Scheduled
Tribe 'Gond Gowari' is not in existence when the
caste was included in Constitution (Scheduled Tribes)
Order, 1950.
14. Shri Divan submits that Anthropological Expert
Report which was on record before the High Court also
clearly stated that 'Gond Gowari' is a Scheduled
Tribe which is different with 'Gowari'. The caste
'Gowari' has close affinity with 'Yadav' and 'Ahir'
whereas 'Gond Gowari' has affinity with 'Gond'. Both
are different in its culture and customs. Shri Divan
has also placed reliance on the report submitted by
12
the Tata Institute of Social Sciences, Mumbai dated
29.12.2020 on “Socio-Anthropological Study of Gowari
Community of Maharashtra”. He submits that in the
report after considering all aspects including field
visits by research team at different places had found
two communities, i.e., 'Gond Gowari' and 'Gowari'
different in customs, worship and settlement. The
report submits that 'Gond Gowari' is sub-Tribe of
'Gond' whereas 'Gowari' are cattle graziers. It is
submitted that there have been several attempts by
'Gowari' to obtain status of Scheduled Tribes by
including them within the List of Scheduled Tribes
through Parliamentary enactment and 'Gowaris' having
failed in all their attempts, have filed the writ
petitions for seeking declaration which could not
have been granted by a Court of law. The High Court
entered into the evidence to come to the finding that
the Tribe 'Gond Gowari' was completely extinct before
1911 which exercise could not have been undertaken in
writ petitions. There are other materials on records
which clearly proved the presence of 'Gond Gowari'
before and after 1956 and even as on date and the
13
High Court committed error in holding that the Tribe
'Gond Gowari' was completely extinct before 1911.
15. It is submitted that 'Gowari' has already been
declared as Special Backward Class by the State
Government by Resolutions dated 13.06.1995 and
15.06.1995 and also included in the category of other
Backward Classes by Government of India notification
dated 16.06.2011. The benefit of Resolution has
already been availed by 'Gowari' and the fact that
they have been recognised as Special Backward Class
and other Backward Class category by the State of
Maharashtra and Government of India respectively is
indicative of fact that they are not Scheduled Tribes
but are belonging to other Backward Class.
16. Shri Shyam Divan has also relied on the Division
Bench judgment of the High Court of Bombay at Nagpur
dated 04.04.1996 delivered in Writ Petition No.1691
of 1990 - Adivasi Gowari Samaj Sanghatan, Maharashtra
and Anr. Vs. Union of India and Ors., where a writ
petitioner claiming Scheduled Caste status by
'Gowari' community was rejected by the Division Bench
14
approving the action of authority in examining the
affinity of the writ petitioner with the main Tribe
'Gond'. Shri Divan submits that there being a
Division Bench judgment rejecting the claim of Gowari
which was a judgment of co-ordinate Bench, the High
Court in the impugned judgment could not have taken a
contrary view.
17. Shri Sanjay Jain, learned Additional Solicitor
General in support of the appeal filed by the Union
of India contends that the High Court failed to
appreciate that list of Scheduled Tribes in relation
to a State which is notified by the order of the
President after consultation with the State can be
modified only through an Act by the Parliament in
consultation with the State Government. The High
Court in the impugned judgment has substituted its
own opinion in place of the opinion of the Parliament
which is not permissible in law.
18. Shri C.U. Singh, learned senior counsel for the
appellant submits that the High Court committed an
error in holding that 'Gond Gowari' are extinct. It
15
is submitted that the High Court has ignored the
Parliamentary Committee's proceedings and studies on
the subject. Shri C.U. Singh specifically referring
to the Statement of Objects and Reasons to the “The
Scheduled Castes and Scheduled Tribes Orders
(Amendment) Bill, 1976” submits that only those
communities were excluded who were not found in a
State in the return of Census of 1961 and 1971. He
submits that the fact that 'Gond Gowari' was retained
and was not excluded by the Amendment Act, 1976
clearly points out that the Parliament was satisfied
with the existence of 'Gond Gowari'. Shri Singh also
referring to Article 338A of the Constitution which
has been inserted by the Constitution (Eighty-Ninth
Amendment) Act, 2003 submits that National Commission
for the Scheduled Tribes having been constituted
which is empowered to investigate and monitor all
matters relating to the safeguards provided for the
Scheduled Tribes, without reference to National
Commission for the Scheduled Tribes, it was not open
for the writ petitioners to file a writ petition for
claiming the status of Scheduled Tribes. Shri C.U.
16
Singh further, submits that in the writ petition
filed before the High Court there was no specific
plea that Gond Gowari was extinct.
19. Shri Ravindra Keshavrao Adsure, learned counsel
adopting the submissions of Shri Shyam Divan submits
that 'Gowari' had made several attempts to obtain the
benefits of Scheduled Tribes and they having failed
in all their attempts have filed the writ petitions
to obtain a declaration from the Court of Law
regarding their status as Scheduled Tribes which is
not permissible in law.
20. Shri Mukul Rohatgi, learned senior counsel
appearing for the respondents supporting the judgment
of the High Court contends that it was open for the
High Court to find out the true meaning and contents
of Entry 'Gond Gowari' as included in the
Constitution (Scheduled Tribes) Order, 1950. He
submits that insofar as Government Resolutions
declaring the 'Gowari' as Special Backward Class and
other Backward Class, the said Resolutions and
notifications were challenged by the writ petitioners
17
in their writ petitions. They never wanted the
benefit of Special Backward Class or other Backward
Class. The High Court has rightly restored the
benefit of Scheduled Tribes 'Gowari' to which they
were entitled in law. Shri Rohatgi submits that the
High Court did not commit error in entering into an
issue and returning a finding that 'Gond Gowari' was
extinct before 1911. When 'Gond Gowari' was extinct
before 1911 it was the 'Gowari' who were entitled to
be treated as Scheduled Tribes in the Entry 18. It
was fully permissible for the High Court to find out
as to whether any Tribe named 'Gond Gowari' is in
existence or not and who are the true 'Gond Gowari'
entitled for the benefit of the Scheduled Tribes.
21. Shri Rohatgi submits that 'Gond Gowari' was a
small hybrid caste by alliance of Gond and Gowari, in
1911 Gond Gowari were completely amalgamated with the
Tribe Gowari. It is submitted that in fact there is
no Tribe of “Gond Gowari” and it is in fact Gowari
which was included in the Constitution (Scheduled
Tribes) Order, 1950. He submits that for Gowari to
recognise as Scheduled Tribes there is no necessity
18
of showing any affinity with Gond. He submits that by
the Scheduled Castes and Scheduled Tribes (Amendment)
Act, 1976, the word including “Gond Gowari” as
occurring in Entry 12 was substituted by Entry 18 by
deleting word Gond which clearly means that all
Tribes mentioned in the Entry 18 are independent
Tribes with having no affinity with Gond. He submits
that the State of Maharashtra right from 1967 has
been taking the stand that Gowari be included as
separate category of Scheduled Tribe in the
Constitution (Scheduled Tribes) Order, 1950, the
State cannot suddenly take a U-turn and start denying
the claim of Gowari to be Scheduled Tribe. Shri
Rohatgi submits that the High Court has referred to a
host of materials considered in the judgment for
coming to the conclusion that Tribe Gond Gowari
became extinct prior to 1911. The exercise undertaken
by the High Court is in consonance with the law laid
down by the Constitution Bench in B. Basavalingappa
Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269. He
submits that before the High Court it does not make
any difference whether the claim that Gond Gowari
19
were extinct before 1911 was admitted or disputed,
even it is disputed, the High Court had to find out
truth to clear the confusion after looking into the
evidence on record. He submits that the High Court
has referred to the Census Reports and has rightly
found out that after 1911 in subsequent Censuses held
that it was only Gowari who were found present. Gond
Gowari being surplusage the claim was raised for
substitution of Gond Gowari with Gowari. It is
submitted that it is the Gowari who were found
present in Census after 1911 and it were Gowari who
were entitled to be treated as Scheduled Tribes and
Gowari being not a sub-caste of Gond they were not
required to prove any affinity with Gond and the
Resolution dated 24.04.1985 of the State of
Maharashtra requiring affinity to be proved was not
in accordance with law. Shri Rohatgi submits that it
is actually Gowari who have been given certificate of
Scheduled Tribes. He submits that there are no
competitive claims of Gond Gowari, there being no
Tribe of Gond Gowari in existence as of now.
22. Shri Rohatgi further submits that ratio of
20
Constitution Bench in State of Maharashtra Vs. Milind
and Ors. is not in accord with the ratio of earlier
Constitution Bench in B. Basavlingappa. There being
conflict between the ratio of two Constitution
Benches, the matter needs to be referred to a larger
Constitution Bench for resolving the conflict. Shri
Rohatgi lastly submits that after the judgment of
Division Bench dated 14.08.2018, Scheduled Tribes'
certificates were issued on the basis of which
admissions/employment have been undertaken by members
of Gowari community which benefit needs to be
protected by this Court.
23. Ms. Bansuri Swaraj, appearing for the respondents
submits that Gond Gowari community was short-lived
and it got extinct completely prior to the Census of
1911. There did not exist any Tribe named 'Gond
Gowari' as on 29.10.1956, i.e., the date of its
inclusion in Entry No.18 of the Constitution
(Scheduled Tribes) Order, 1950. It is submitted that
Gowari community alone which was shown as 'Gond
Gowari'. Reliance has also been placed on book titled
“Castes and Tribes of the Central Provinces of India”
21
by Russell and Hira Lal. It is submitted that first
Backward Classes Commission under the Chairmanship of
Kakasaheb Kalelkar had recommended Gowari under the
Sub-group/Sub-tribes 'Gond' group, which was to be
added with Gond, but by some mistake instead of
Gowari, Gond Gowari was included in the Entry in the
Scheduled Castes and Scheduled Tribes Lists
(Amendment) Bill, 1956. Although amendment was
supposed to be made as Gowari to be added with Gond
but was erroneously made as Gond Gowari. It is
submitted that in the year 1965, the Chief Minister
of Maharashtra had discussed with the Advisory
Committee and it was recommended that the Gowari
Tribe be added as a separate Tribe by deleting the
Entry of Gond Gowari. The State of Maharashtra having
taken a stand that Gowari be included as separate
Entry in the Scheduled Tribes, there is a legitimate
expectation in the Gowari community. After the
judgment of the High Court, the Revenue Minister of
the State has made a statement that High Court
judgment shall be implemented which stand has
subsequently been changed.
22
24. Learned counsel for the parties have placed
reliance on the various judgments of this Court which
shall be referred to while considering the
submissions in detail.
25. Before we enter into the respective submissions
of learned counsel for the parties, it is relevant to
notice the relevant constitutional provisions as well
as the Constitution (Scheduled Tribes) Order, 1950
amended from time to time and other relevant
statutory provisions.
26. Part XVI of the Constitution deals with “Special
Provisions relating to certain classes”. Article 342
of the Constitution deals with Scheduled Tribes,
which is to the following effect:-
“342. 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
23
(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.”
27. Article 366(25) defines Scheduled Tribes in
following words:-
“366. Definitions.-- In this Constitution,
unless the context otherwise requires, the
following expressions have the meanings
hereby respectively assigned to them, that
is to say—
XXXXXXXXXXXXX
(25) “Scheduled Tribes” 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;
XXXXXXXXXXXXXXXX”
28. In exercise of power under Article 342, the
President had issued the Constitution (Scheduled
Tribes) Order, 1950 dated 06.09.1950. Paragraphs 2
and 3 of the Order states:-
“2. The tribes or tribal communities,
or parts of, or groups within, tribes or
24
tribal communities, specified in Parts I
to XIV of the Schedule to this Order
shall, in relation to the States to which
those Parts respectively relate, be
deemed. to be Scheduled Tribes so far as
regards members thereof resident in the
localities specified in relation to them
respectively in those Parts of that
Schedule.
3. Any reference in the Schedule to
this Order to a district or other
territorial division of a State shall be
construed as a reference to that district
or other territorial division as existing
on the 26th January, 1950.”
29. The Schedule contains details of Scheduled Tribes
with reference to different States. Part III to the
Schedule deals with the State of Bombay and Entry
No.9 of Part III mentioned “9. Gond”. Part IV dealt
with Madhya Pradesh where also Entry No.12 mentions
“Gond [including Madia (Maria) and Mudia (Muria)]”.
The Parliament passed an Act namely, The Scheduled
Castes and Scheduled Tribes Orders (Amendment) Act,
1956 to provide for the inclusion in, and the
exclusion from the lists of Scheduled Castes and
Scheduled Tribes, of certain castes and tribes and
matters connected therewith. AS per Section 4 of the
Act, 1956, Constitution (Scheduled Tribes) Order,
25
1950 was amended in the manner and to the extent as
specified in Schedule III. In Schedule III, Entry
No.9 was substituted by following Entry:-
“9. Gond or Rajgond.”
30. Part IV which deals with Madhya Pradesh, Entry 12
was substituted by following entry:-
“12 Gond, includingArakh or Arrakh
Agaria
Asur
Badi Maria or Bada Maria
Bhatola
Bhimma
Bhuta, Koilabhuta or Koilabhuti
Bhar
Bisonhorn Maria
Chota Maria
Dandami Maria
Dhuru or Dhurwa
Dhoba
Dhulia
Dorla
Gaiki
Gatta or Gatti
Gaita
Gond Gowari
Hill Maria
Kandra
Kalanga
Khatola
Koitar
Koya
Khirwar or Khirwara
Kucha Maria
Kuchaki Maria
Madia (Maria)
Mana
26
Mannewer
Moghya or Mogia or Manghya
Mudia (Muria)
Nagarchi
Nagwanshi
Ojha
Raj
Sonjhari Jhareka
Thatia or Thotya
Wade Maria or Vade Maria”
31. It is to be noticed that amendment to the
Scheduled Tribes with respect to Madhya Pradesh was
consequent to recommendations by the report of the
Backward Classes Commission also known as Kalelkar
Commission. With regard to Madhya Pradesh with
regard to list of Scheduled Tribes published in
Constitution (Scheduled Tribes) Order, 1950 together
with the revision suggested by the Backward Classes
Commission is included in volume II of the Report.
Entry No.12 in the List of the Scheduled Tribes was
with respect to Gond [including Madia (Maria) and
Mudia (Muria)]. Backward Classes Commission
suggested addition of several sub-tribes of Gond with
Gond. Column No.VI of the Table contains heading
“Commission’s recommendation for inclusion”. Item
No.10 in Column No.6 is to the following effect:-
27
“10. Sub-Tribes of Gond : (to be added
with Gond) Arakh or Arrakh
Agaria
Asur
Bhatola
Bhimma
Bhuta or Keliabhuta or Koilabhuti
Bhar
Dhuru or Dhurwa
Dhoba
Dhulia
Gatta or Gatti
Gaita
Gaiki
Ganda or Gandi
Gowari
Kalanga
Khatola
Koitar
Koya
Khirwar or Khirwara
Moghya or Mogia or Monghya
Nagarchi
Ojha
Thatia or Thotya
Raj
Nagwanshi
Mannewar
Dorla
Mana
Kandra
Bison horn Miria
Hill Maria
Badi Maria or Bada Maria, Chota Maria,
Dandami Maria
Kuchaki Maria
Kucha Maria
Wade Maria or Vade Maria”
32. The States Reorganisation Act, 1956 was enacted
by Parliament to provide for the reorganisation of
28
the States of India and for matters connected
therewith. Section 8 provided for formation of a new
Bombay State. By virtue of Section 8(1)(c) following
districts, which then existed in the State of Madhya
Pradesh were included in the new Bombay State, which
is to the following effect:-
“8. Formation of a new Bombay State.―(1)
As from the appointed day, there shall be
formed a new State to be known as the
State of Bombay comprising the following
territories, namely:―
XXXXXXXXXXXX
(c) Buldana, Akola, Amravati, Yeotmal,
Wardha, Nagpur, Bhandara and Chanda
districts in the existing State of Madhya
Pradesh;
XXXXXXXXXXXX”
33. The above districts were earlier part of the
State of Madhya Pradesh. Section 41 of the States
Reorganisation Act provide for modification of the
Scheduled Castes and Scheduled Tribes Orders with
regard to territorial changes and formation of new
States under the provisions of Part II. In exercise
of power under Section 41 of the States
Reorganisation Act, Scheduled Castes and Scheduled
29
Tribes Lists modification under Order 1950 was issued
dated 29.10.1956. Part IV of the Schedule dealt with
Bombay. Schedule III contains the modification to
the Constitution (Scheduled Tribes) Order, 1950.
Part IV of the Schedule dealt with Bombay. Although,
Entry No. 9 continued as Gond or Rajgond but with
regard to certain Tehsils of Districts Amrawati,
Chanda and Yeotmal, Entry No.12 alongwith Entry of
Gond following was included:-
“7. In (1) Melghat tahsil of the Amravati
District,
(2) Gadchiroli and Sironcha
tahsils of the Chanda District,
(3) Kelapur, Wani and Yeotmal
tahsils of the Yeotmal
District:-
XXXXXXXXXXXX
12. Gond, including:-
Arakh or Arrakh
Agaria
Asur
Badi Maria or Bada Maria
Bhatola
Bhimma
Bhuta, Koilabhuta or
Koilabhuti
Bhar
Bisonhorn Maria
Chota Maria
Dandami Maria
Dhuru or Dhurwa
Dhoba
Dhu1ia
30
Dorla
Gaiki
Gatta or Gatti
Gaita
Gond Gowari
Hill Maria
Kandra
Kalanga
Khatola
Koitar
Koya”
34. We, thus, notice that after recommendation of
Backward Classes Commission for the State of Madhya
Pradesh by virtue of Act, 1956, with the tribe “Gond”
“Gond Govari” was added as the Scheduled Tribes by
modification order dated 29.10.1956. With respect to
State of Bombay in specific areas, with regard to
entry of Gond as Scheduled Tribe, several sub-tribes
including “Gond Govari” was added as noticed above.
35. The Parliament enacted the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 (Act
No.108 of 1976) to provide for the inclusion in, and
the exclusion from the list of Scheduled Castes and
Scheduled Tribes, of certain castes and tribes, for
the re-adjustment of representation of parliamentary
and assembly constituencies in so far as such re31
adjustment is necessitated by such inclusion or
exclusion and for matters connected therewith. The
Statements of Objects and Reasons of the Bill is
relevant, which is to the following effect:-
"STATEMENT OF OBJECTS AND REASONS
Under the Scheduled Castes and
Scheduled Tribes Orders some communities
have been specified as Scheduled Castes or
as Scheduled Tribes only in certain areas
of the State concerned and not in respect
of the whole State. This has been causing
difficulties to members of these
communities in the areas where they have
not been so specified. The present Bill
generally seeks to remove these area
restrictions. However, in cases where
continuance of such restrictions were
specifically recommended by the Joint
Committee on the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Bill,
1967, no change is being effected. The
Committee had also recommended exclusion
of certain communities from the lists of
Scheduled Castes and Scheduled Tribes.
These exclusions are not being made at
present and such communities are being
retained in the lists with the present
area restrictions. Such of the communities
in respect of which the Joint Committee
had recommended exclusion on the ground
that they were not found in a State are,
however, being excluded if there were no
returns in respect of these communities in
the censuses of 1961 and 1971.
32
2. The proposed amendments in the
lists of Scheduled Castes and Scheduled
Tribes may lead to an increase in the
population of these Castes and Tribes and
consequently in the number of reserved
seats in the Lok Sabha and certain State
Legislative Assemblies. Provisions have
therefore been made in the Bill to empower
the census authority to re-estimate the
population of the Scheduled Castes and the
Scheduled Tribes and the Election
Commission to reallocate the reserved
constituencies."
36. The second Schedule of the Act, 1976 provides for
substitution in Constitution (Scheduled Tribes)
Order, 1950 as indicated therein. With regard to
State of Maharashtra, which was formed, Part IX of
the Second Schedule, Entry No.18 deals with Scheduled
Tribe “Gond”, which is to the following effect:-
“18. Gond Rajgond, Arakh, Arrakh, Agaria,
Asur, Badi Maria, Bada Maria, Bhatola,
Bhimma, Bhuta, Koilabhuta, Koilabhuti,
Bhar, Bisonhorn Maria. Chota Maria,
Dandami Maria, Dhuru, Dhurwa, Dhoba,
Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita,
Gond Gowari, Hill Maria, Kandra, Kalanga,
Khatala, Koitar, Koya, Khirwar, Khirwara,
Kucha Maria, Kuchaki Maria, Madia, Maria,
Mana, Mannewar, Moghya, Mogia, Monghya,
Mudia, Muria, Nagarchi, Naikpod,
Nagwanshi, Ojha, Raj, Sonjhari Jhareka,
Thatia, Thotya, Wade Maria, Vade Maria”
33
37. Subsequent to above, the Parliament passed the
Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 2002, the preamble of which is to
the following effect:-
“An Act to provide for the inclusion in
the lists of Scheduled Tribes, of certain
tribes or tribal communities or parts of
or groups within tribes or tribal
communities, equivalent names or synonyms
of such tribes or communities, removal of
area restrictions and bifurcation and
clubbing of entries; imposition of area
restriction in respect of certain castes
in the lists of Scheduled Castes, and the
exclusion of certain castes and tribes
from the lists of Scheduled Castes and
Scheduled Tribes, in relation to the
States of Andhra Pradesh, Arunachal
Pradesh, Assam, Bihar, Goa, Gujarat,
Himachal Pradesh, Jharkhand, Karnataka,
Kerala, Madhya Pradesh, Maharashtra,
Manipur, Mizoram, Orissa, Sikkim, Tamil
Nadu, Tripura, Uttar Pradesh and West
Bengal.”
38. The only amendment which was made with respect to
Schedule pertaining to Maharashtra in Entry 18 was to
the following effect:-
“(i) in Part IX – Maharashtra—
(i) omit entry 12;
(ii) in entry 18 for “Gond Rajgond”
substitute “Gond, Rajgond”;
34
(iii) omit entry 45;”
39. The above amendment in the Scheduled Castes order
indicate the care which was taken by the legislature
in describing the Scheduled Tribes entries. By the
above amendment in earlier Entry No.18 of “Gond
Rajgond”, substitution was made by which now it is
read as “Gond, Rajgond”.
40. From the submissions of learned Counsel for the
parties and materials on record, following questions
arise for consideration: -
1) Whether the High Court in the writ petition
giving rise to these appeals could have
entertained the claim of the caste “Gowari”,
which is not included as Scheduled Tribe in
the Constitution (Scheduled Tribes) Order,
1950, that it be declared a Scheduled Tribe
as “Gond Govari” which is included at Item
No.18 of Constitution (Scheduled Tribes)
Order, 1950 applicable in the State of
Maharashtra and further to take evidence to
adjudicate such claim?
35
2) Whether the ratio of the judgment of the
Constitution Bench of this Court in B.
Basavalingappa Vs. D. Munichinnappa, AIR 1965
SC 1269 permits the High Court to take
evidence to find out whether ‘Gowari’ are
‘Gond Gowari’ and is there any conflict in
ratio of judgment of Constitution Bench in B.
Basavalingappa and subsequent Constitution
Bench judgment of this Court in State of
Maharashtra Vs. Milind, (2001) 1 SCC 4?
3) Whether the High Court could have entered
into the adjudication of the issue that ‘Gond
Gowari’ which is a Scheduled Tribe mentioned
in Scheduled Tribes Order, 1950, as amended
up to date is no more in existence and was
extinct before 1911?
4) Whether the conclusion of the High Court in
the impugned judgment that ‘Gond Gowari’
Tribe was extinct before 1911 is supported on
the materials which were on record before the
High Court?
36
5) Whether caste ‘Gowari’ is same as ‘Gond
Gowari’ included at Item No.28, Entry 18 of
the Constitution (Scheduled Tribes) Order,
1950 and the High Court could have granted
declaration to caste ‘Gowari’ as ‘Gond
Gowari’ entitled for Scheduled Tribe
certificate?
6) Whether the High Court is correct in its view
that ‘Gond Gowari’ shown as Item No.28 in
Entry 18 of the Constitution (Scheduled
Tribes) Order, 1950 is not a sub-tribe of
Gond, hence, its validity cannot be tested on
the basis of affinity test specified in
Government Resolution dated 24.04.1985?
Question Nos. 1 and 2
41. The Constitution of India contains ample
provisions for fulfilment of the Constitutional
aspirations of social justice to the Scheduled Castes
and Scheduled Tribes and to socially and
educationally backward classes of citizens. Articles
37
341 and 342 and Part XIV of the Constitution contains
several provisions as special provisions relating to
certain classes. Article 342 of the Constitution
envisages public notification specifying the tribes
or tribal communities or parts of or groups within
tribes or tribal communities which shall be for the
purposes of this Constitution be deemed to be
Scheduled Tribes in relation to a State after
consultation with Governor thereof. Sub-clause (2)
contains another important provision which provides
that any inclusion or exclusion from the list of
Scheduled Tribes specified in a notification issued
under clause (1) of Article 342 can be done only by
Parliament by law. Sub-clause (2) of Article 342,
thus, contains a provision conferring authority only
to the Parliament to include and exclude a Scheduled
Tribe in the list as specified in the sub-clause (1)
of Article 342. There has been a series of judgments
of this Court including Constitution Benches on
Articles 341 and 342 as well as entries in Scheduled
Castes and Scheduled Tribes Order, 1950. This Court
had occasion to consider as to what extent the Courts
38
including the High court and this Court could
interpret the entries in Scheduled Castes and
Scheduled Tribes Orders. The High Court has heavily
relied on Constitution Bench judgment of this Court
in B.Basavalingappa Vs. D. Munichinnappa and Ors.,
AIR 1965 SC 1269.
42. We may first notice the above judgment. An
Election Petition was filed challenging the election
of respondent No.1 on the ground that respondent No.1
not being member of any Scheduled Castes mentioned in
Constitution (Scheduled Castes) Order, 1950 could not
have contested the election from Scheduled Caste
Constituency. The respondent claimed that he belongs
to a Scheduled Caste listed as Bhovi in the Order.
the appellant’s case was that respondent No.1 was a
Voddar by caste, which was not a Scheduled Caste.
The Election Tribunal held that the caste mentioned
as Bhovi in the Scheduled Castes Order was a subcaste amongst the Voddars and the entire Voddar caste
not being included as Scheduled Caste, the respondent
NO.1 was ineligible. The election was set aside. On
appeal, High Court held that Voddars caste as such
39
was not included in the Order, but considering the
facts and circumstances in existence at the time when
the Order was passed in 1950, the Bhovi caste
mentioned therein was no other than Voddar caste. The
High Court allowed the appeal, against which
judgment, appeal was filed in this Court. The
Constitution Bench of this Court speaking through
Wanchoo, J. held that it is not open to make any
modification in the Order by producing evidence to
show that though caste A alone is mentioned in the
Order, caste B is also a part of caste A. The ratio
of the judgment is clearly discernible from paragraph
6 of the judgment, which is to the following effect:-
“6. It may be accepted that it is not
open to make any modification in the Order
by producing evidence to show (for
example) that though caste A alone is
mentioned in the Order, caste B is also a
part of caste A and therefore must be deem
to be included in caste A. It may also be
accepted that wherever one caste has
another name it has been mentioned in
brackets after it in the Order [see Aray
(Mala) Dakkal (Dokkalwar) etc.].
Therefore, generally speaking it would not
be open to any person to lead evidence to
establish that caste B (in the example
quoted above) is part of caste A notified
in the Order. Ordinarily therefore it
would not have been open in the present
case to give evidence that the Voddar
40
caste was the same as the Bhovi caste
specified in the Order for Voddar caste is
not mentioned in brackets after the Bhovi
caste in the Order.”
43. After noticing the above preposition in paragraph
6, this Court noticed the peculiar circumstances of
the case where in the Mysore State as it was before
reorganisation of 1956, there was no caste known as
Bhovi at all. This Court, however, further
emphasised that “if there was a caste known as Bhovi
as such in the Mysore State as it existed before
1956, evidence could not be given to prove that any
other caste was included in the Bhovi caste”. In the
above case, this Court, however, further held that
when the undisputed fact is that there was no caste
specifically known as Bhovi in the Mysore State and
when one finds mentioned in the Order, one has to
determine which was the caste which was meant. In
paragraph 7 of the judgement, following has been laid
down:-
“7. But that in our opinion does not
conclude the matter in the peculiar
circumstances of the present case. The
difficult in the present case arises from
the fact (which was not disputed before
the High Court) that in the Mysore State
41
as it was before the re-organisation of
1956 there was no caste known as Bhovi at
all. The Order refers to a Scheduled caste
known as Bhovi in the Mysore State as it
was before 1956 and therefore it must be
accepted that there was some caste which
the President intended to include after
consultation with the Rajpramukh in the
order, when the Order mentions the caste
Bhovi as a scheduled caste. It cannot be
accepted that the President included the
caste Bhovi in the order though there was
no such caste at all in the Mysore State
as it existed before 1956. But when it is
not disputed that there was no caste
specifically known as Bhovi in the Mysore
State before 1956, the only course open to
Courts to find out which casts was meant
by Bhovi is to take evidence in that
behalf. If there was a caste known as
Bhovi as such in the Mysore State as it
existed before 1956, evidence could not be
given to prove that any other caste was
included in the Bhovi caste. But when the
undisputed fact is that there was no caste
specifically known as Bhovi in the Mysore
State as it existed before 1956 and one
finds a caste mentioned as Bhovi in the
Order, one has to determine which was the
caste which was meant by that word on its
inclusion in the Order. It is this
Peculiar circumstance, therefore, which
necessitated the taking of evidence to
determine which was the caste which was
meant by the word 'Bhovi' used in the
Order, when no caste was specifically
known as Bhovi in the Mysore State before
the re-organisation of 1956.”
44. Shri Rohatgi, learned senior counsel appearing
for the appellant has placed much reliance on
42
paragraph 7 of the judgment and has contended that
this Court approved the exercise undertaken by the
High Court to find out which was the Bhovi caste,
which was included in the Constitution (Scheduled
Castes) Order, 1950, hence, an evidence was rightly
looked into by the High Court, which received
approval by this Court. Shri Rohatgi further submits
that although in the B. Basavalingappa’s case the
factum that there was no caste in the Mysore State
before reorganisation known as Bhovi at all was not
disputed but the fact that whether it is disputed or
not disputed shall not make any difference, whenever
the issue is raised that has been answered by the
Courts looking into the evidence.
45. The observations made by this Court in paragraph
7 in no manner dilutes the ratio of the judgment as
laid down in paragraph 6 quoted above. This Court
approved the High Court exercise of looking into the
evidence to determine which was the caste which was
meant by the word “Bhovi” in the Order in the
peculiar circumstances of the case where the fact was
not disputed that there was no caste known as Bhovi
43
in the Mysore State before 1956. In paragraph 7,
these following two observations made by this Court
are in full accord with the ratio as laid down in
paragraph 6, they are:-
“7. ………………………..It cannot be accepted
that the President included the caste
Bhovi in the order though there was no
such caste at all in the Mysore State as
it existed before 1956.
……………………………………………………………………. If there was a
caste known as Bhovi as such in the Mysore
State as it existed before 1956, evidence
could not be given to prove that any other
caste was included in the Bhovi caste.
………………………………”
46. In the present case, the case of the respondent
in the writ petition was categorical that Gond Gowari
was a caste which was in existence since before
25.09.1956. Even the High Court in the impugned
judgment has said that caste Gond Gowari did not
exist prior to 1956 rather the High Court held that
caste was there but it became extinct prior to 1911.
Thus, the circumstances in which this Court in B.
Basavalingappa’s case approved the looking of the
evidence were peculiar to that case and has no
application in the facts of the present case.
44
47. We may notice another Constitution Bench judgment
in Bhaiya Lal Vs. Harikishan Singh and Ors., 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
45
down:-
“8. Incidentally, we may point out that
the plea that the Dohar caste is a subcaste 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 issued under
the said clause shall not be varied by any
subsequent notification. It is thus clear,
that in order to determine whether or not
a particular caste is a scheduled caste
within the meaning of Article 341, one has
to look at the public notification issued
by the President in that behalf. In the
present case, the notification refers to
Chamar, Jatav or Mochi, and so, in dealing
with the question in dispute between the
parties, the enquiry which the Election
Tribunal can hold is whether or not the
appellant is a Chamar, Jatav or Mochi. The
plea that though the appellant is not a
Chamar as such, he can claim the same
46
status by reason of the fact that he
belongs to the Dohar caste which is a subcaste of the Chamar caste, cannot be
accepted. It appears to us that an enquiry
of this kind would not be permissible
having regard to the provisions contained
in Article 341. In the case of B.
Basavalingappa v. D. Munichinnappa this
Court had occasion to consider a similar
question. The question which arose for
decision in that case was whether
Respondent 1, though Voddar by caste,
belonged to the scheduled caste of Bhovi
mentioned in the Order, and while holding
that an enquiry into the said question was
permissible, the Court has elaborately
referred to the special and unusual
circumstances which justified the High
Court in holding that Voddar caste was the
same as the Bhovi caste within the meaning
of the Order; otherwise the normal rule
would be:
“it may be accepted that it is not
open to make any modification in
the Order by producing evidence to
show, for example, that though
caste A alone is mentioned in the
Order, caste B is also a part of
caste A and, therefore, must be
deemed to be included in caste A.”
That is another reason why the plea made
by the appellant that the Dohar caste is a
sub-caste of the Chamar caste and as such
must be deemed to be included in the
Order, cannot be accepted.”
48. In Bhaiya Lal’s case, the Constitution Bench
reiterated the ratio of B. Basavalingappa’s case in
47
following words:-
“it may be accepted that it is not open to
make any modification in the Order by
producing evidence to show, for example,
that though caste A alone is mentioned in
the Order, caste B is also a part of caste
A and, therefore, must be deemed to be
included in caste A.”
49. We may notice few more judgments of this Court
where the law on the subject was explained and
reiterated. In Srish Kumar Choudhury Vs. State of
Tripura and Ors., 1990 Supp SCC 220, this Court had
occasion to consider Article 342. In the above case,
the appellant had filed an application in a
representative capacity before the High Court
claiming that he belonged to Laskar community, which
has always been treated in the erstwhile State of
Tripura as a Scheduled Tribe. The writ petition was
dismissed by the High Court against which the appeal
was filed. This Court referred to earlier two
Constitution Bench judgments in B. Basavalingappa’s
case and Bhaiya Lal’s case. The observations made by
the Constitution Bench in B. Basavalingappa’s case
and Bhaiya Lal’s case were extracted in paragraphs 8,
48
9 and 10. In paragraph 9, Three Judge Bench quoted
the extract from Bhaiya Lal’s judgment and in
paragraph 11, it was held that the ratio of judgment
of Bhaiya Lal’s case supports the view of earlier
judgment of Constitution Bench in B. Basavalingappa’s
case. In paragraphs 10 and 11, following has been
laid down;-
“10. A similar dispute again came before a
Constitution Bench in Bhaiyalal v.
Harikishan Singh, AIR 1965 SC 1557 with
reference to a scheduled tribe in an
election dispute. Gajendragadkar, C.J.
speaking for the court said : (SCR pp.
882-83)
“It is obvious that in specifying
castes, races or tribes, the
President has been expressly
authorised to limit the
notification to parts of or groups
within the castes, races or
tribes, and that must mean that
after examining the educational
and social backwardness of a
caste, race or tribe, the
President may well come to the
conclusion that not the whole
caste, race or tribe but parts of
or groups within them should be
specified. Similarly, the
President can specify castes,
races or tribes or parts thereof
in relation not only to the entire
State, but in relation to parts of
the State where he is satisfied
that the examination of the social
and educational backwardness of
49
the race, caste or tribe justifies
such specification. In fact, it is
well known that before a
notification is issued under
Article 341(1), an elaborate
enquiry is made and it is as a
result of this enquiry that social
justice is sought to be done to
the castes, races or tribes as may
appear to be necessary, and in
doing justice, it would obviously
be expedient not only to specify
parts or groups of castes, races
or tribes, but to make the said
specification by reference to
different areas in the State.”
11. What we have extracted above clearly
supports the view of the other
Constitution Bench, namely, the list is
intended to be final.”
50. The Three Judge Bench reiterated that Courts
cannot enter into an enquiry to determine whether the
three terms indicated in the Presidential Order
include Deshi Tripura which covers the Laskar
community. In paragraph 20, following was laid
down:-
“20. The two Constitution Bench judgments
indicate that enquiry is contemplated
before the Presidential Order is made but
any amendment to the Presidential Order
can only be by legislation. We do not
think we should assume jurisdiction and
enter into an enquiry to determine whether
the three terms indicated in the
Presidential Order include Deshi Tripura
50
which covers the Laskar community;
……………………………………”
This Court also reiterated that enquiry is
contemplated before the Presidential Order is made.
51. The next judgment to be noticed is Palghat Jilla
Thandan Smudhaya Samrakshna Samithi and Anr. Vs.
State of Kerala and Anr., (1994) 1 SCC 359. In the
above case, a writ petition was filed claiming that
the petitioner belonged to Thandan community,
therefore, a Scheduled Caste certificate be issued.
The writ petition was allowed, however, the
petitioner was denied admission in M.B.B.S. course in
seat reserved for Scheduled Caste on the ground that
she was not a Thandan. A Three Judge Bench of this
Court after noticing the ratio of earlier two
Constitution Bench judgments has held that the Court
could not assume the jurisdiction and order an
enquiry to determine whether the terms of the
Presidential Order includes a particular community.
In paragraphs 17 and 18, following was laid down:-
“17. We may usefully draw attention to
the judgment of a Bench of three learned
51
Judges of this Court in Srish Kumar
Choudhury v. State of Tripura, 1990 Supp
SCC 220. This judgment considered the
Constitution Bench judgments in B.
Basavalingappa v. D. Munichinnappa, AIR
1965 SC 1269 and Bhaiyalal v. Harikishan
Singh, AIR 1965 SC 1557 and certain other
judgments. It held that the two
Constitution Bench judgments indicated
that any amendment to the Presidential
Orders could only be by legislation. The
Court could not assume jurisdiction and
order an enquiry to determine whether the
terms of the Presidential Order included a
particular community. A State Government
was entitled to initiate appropriate
proposals for modification in cases where
it was satisfied that modifications were
necessary and, if after appropriate
enquiry, the authorities were satisfied
that a modification was required, an
amendment could be undertaken as provided
by the Constitution.
18. These judgments leave no doubt
that the Scheduled Castes Order has to be
applied as it stands and no enquiry can be
held or evidence let in to determine
whether or not some particular community
falls within it or outside it. No action
to modify the plain effect of the
Scheduled Castes Order, except as
contemplated by Article 341, is valid.”
52. A Two Judge Bench in Kumari Madhuri Patil and
Anr. Vs. Addl. Commissioner, Tribal Development and
Ors., (1994) 6 SCC 241 had occasion to consider the
Constitution (Scheduled Tribes) Order, 1950 as
52
applicable to State of Maharashtra. In Constitution
(Scheduled Tribes) Order, 1950, caste “Mahadeo Koli”
was included. The appellants claimed that they were
entitled to Scheduled Tribe certificate of Mahadeo
Koli whereas caste was shown in admission register as
“Hindu Koli”. The Scheduled Caste certificate was
refused. A writ petition was filed in the High
Court, which was dismissed against which the matter
came to this Court. This Court held that Scheduled
Caste notified was Mahadeo Koli and the petitioners
being Hindu Koli were not entitled for the Scheduled
Tribes certificate. In paragraph 9, following has
been laid down:-
“9. …………………………………………………………….It is common
knowledge that endeavour of States to
fulfil constitutional mandate of
upliftment of Scheduled Castes and
Scheduled Tribes by providing for
reservation of seats in educational
institutions and for reservation of posts
and appointments, are sought to be denied
to them by unscrupulous persons who come
forward to obtain the benefit of such
reservations posing themselves as persons
entitled to such status while in fact
disentitled to such status. The case in
hand is a clear instance of such pseudostatus. Kolis have been declared to be OBC
in the State of Maharashtra being
fishermen, in that their avocation is
53
fishing and they live mainly in the
coastal region of Maharashtra. Mahadeo
Kolis are hill tribes and it is not a subcaste. Even prior to independence, the
Maharashtra Government declared Mahadeo
Koli to be criminal tribe as early as 29-
5-1933 in Serial No. 15 in List II
thereof. In 1942 Resolution in Serial No.
15 in Schedule B of the Bombay resolution
Mahadeo Koli tribe was notified as a
Scheduled Tribe. It was later amended as
Serial No. 13. In the Presidential
Scheduled Castes/Scheduled Tribes Order,
1950, it was reiterated. A slight
modification was made in that behalf by
the Presidential Notification dated 29-10-
1956. In the 1976 Amendment Act, there is
no substantial change except removing the
area restriction. Thus Mahadeo Koli, a
Scheduled Tribe continued to be a
Scheduled Tribe even after independence.
The Presidential Notification, 1950 also
does recognise by public notification of
their status as Scheduled Tribes. The
assumption of the Division Bench of the
Bombay High Court in Subhash Ganpatrao
Kabade case1, that Mahadeo Koli was
recognised for the first time in 1976
under Amendment Act, 1976, as Scheduled
Tribe is not relatable to reality and an
erroneous assumption made without any
attempt to investigate the truth in that
behalf. Presidential declaration, subject
to amendment by Parliament being
conclusive, no addition to it or
declaration of castes/tribes or subcastes/parts of or groups of tribes or
tribal communities is permissible.”
53. A Three Judge Bench in Nityanand Sharma and Anr.
Vs. State of Bihar and Ors., (1996) 3 SCC 576 had
54
also considered the similar question. The question
which was up for consideration has been noted in
paragraph 2 of the judgment to the following effect:-
“2. Short but an important question of
constitutional law of the power of the
court to declare a particular tribe to be
Scheduled Tribe under Scheduled Castes and
Scheduled Tribes Order, 1950 as amended by
Scheduled Castes and Scheduled Tribes
Orders (Amendment Act), 1976 (for short
“the Act”) is the primary question.”
54. The petitioner in the above case belonged to
Lohar community. They claimed Scheduled Tribe
certificate. The State resisted the claim that Lohar
in State of Bihar is recognised as Other Backward
Class and not Scheduled Tribe. The entry in the
Scheduled Tribe Order mentioned Lohara/Lohra. This
Court held that the question which is up for
consideration is no longer res integra and is covered
by ratio of the Constitution Bench judgment in Bhaiya
Lal and B. Basavalingappa case. In paragraphs 13
and 15, following was laid down:-
“13. The question then is: Whether Lohars
could be considered by the Court as
synonyms of Loharas or Lohras? This
question is no longer res integra. In
Bhaiyalal v. Harikishan Singh, AIR 1965 SC
55
1557 a Constitution Bench of this Court
had considered in an election petition
whether Dadar caste was a Scheduled Caste.
It held that the President in specifying a
caste, race or tribe has expressly been
authorised to limit the notification to
parts of or groups within the caste, race
or tribes. It must mean that after
examining the social and educational
backwardness of a caste, race or a tribe,
the President may come to the conclusion
that not the whole caste, race or tribe,
but parts of or groups within them should
be specified as Scheduled Caste or
Scheduled Tribe. The result of the
specification is conclusive. Notification
issued under Article 341(1), after an
elaborate enquiry in consultation with the
Governor and reaching the conclusion
specifying particular caste, race or tribe
with reference to different areas in the
State, is conclusive. The same view was
reiterated in B. Basavalingappa v. D.
Munichinnappa, AIR 1965 SC 1269.
15. It is for 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 (sic) under the Act, and the
Second Schedule thereunder are conclusive.
Though evidence may be admissible to a
limited extent of finding out whether the
community which claims the status as
56
Scheduled Caste or Scheduled Tribe, was,
in fact, included in the Schedule
concerned, 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.”
55. Rejecting the claim of Lohar as Scheduled Tribe,
following was laid down in paragraphs 18 and 20:-
“18. It is seen that in the Second
Schedule in Part III of the Act, as
extracted hereinbefore, Lohar was not
included as a Scheduled Tribe. It is only,
as evidenced from the translated version,
that the community ‘Lohar’ came to be
wrongly translated for the word ‘Lohra’ or
‘Lohara’ and shown to have been included
in the Second Schedule, Part III,
applicable to Bihar State. Mr. B.B. Singh,
therefore, is right in placing before us
the original version in English and the
translated version.
20. Accordingly, we hold that Lohars are
an Other Backward Class. They are not
Scheduled Tribes and the Court cannot give
any declaration that Lohars are equivalent
to Loharas or Lohras or that they are
entitled to the same status. Any contrary
view taken by any Bench/Benches of Bihar
High Court, is erroneous. It would appear
that except some stray cases, there is a
consistent view of that Court that Lohars
are not Scheduled Tribes. They are
blacksmiths. We approve the said view
laying down the correct law.”
56. Now, we come to a subsequent Constitution Bench
57
judgment of this Court in State of Maharashtra Vs.
Milind and Ors., (2001) 1 SCC 4. Before the
Constitution Bench, two questions arose, which are
noted in paragraph 1 of the judgment to the following
effect:-
“In this appeal, the following two
questions arise for consideration:
(1) Whether at all, it is permissible to
hold inquiry and let in evidence to decide
or declare that any tribe or tribal
community or part of or group within any
tribe or tribal community is included in
the general name even though it is not
specifically mentioned in the entry
concerned in the Constitution (Scheduled
Tribes) Order, 1950?
(2) Whether “Halba-Koshti” caste is a subtribe within the meaning of Entry 19
(Halba/Halbi) of the said Scheduled Tribes
Order relating to the State of
Maharashtra, even though it is not
specifically mentioned as such?”
57. Entry 19 of the Constitution (Scheduled Tribes)
Order, 1950 as applicable in the State of Maharashtra
was Halba/Halbi. The claim was raised by another
caste Halba-Koshti that they are also entitled for
issue of Scheduled Tribe certificate. The caste
certificate of the respondent was rejected by the
58
Caste Scrutiny Committee against which an appeal was
filed, which was dismissed holding that respondent
No.1 belonged to Koshti and did not belong to
Halba/Halbi Scheduled Tribe. Writ petition was filed
by respondent No.1, which was allowed by the High
Court holding that it was permissible to enquire
whether any sub-division of a tribe was a part and
parcel of the tribe mentioned therein and that
'Halba-Koshti' is a subdivision of main tribe
'Halba'/'Halbi' as per Entry No. 19 in the Scheduled
Tribe Order applicable to Maharashtra. In paragraph
5 of the judgment, following was held by this Court:-
“5. The High Court allowed the writ
petition and quashed the impugned orders
inter alia holding that it was permissible
to inquire whether any subdivision of a
tribe was a part and parcel of the tribe
mentioned therein and that “Halba-Koshti”
is a subdivision of main tribe
“Halba/Halbi” as per Entry 19 in the
Scheduled Tribes Order applicable to
Maharashtra. Hence the State of
Maharashtra has come up in appeal by
special leave, questioning the validity
and correctness of the order of the High
Court allowing the writ petition of
Respondent 1.”
58. This Court after noticing the constitutional
59
provisions held that it is not possible to say that
State Governments or any other authority or courts or
tribunals are vested with any power to modify or vary
the Scheduled Tribes Orders. This Court also held
that no enquiry is permissible and no evidence can be
let in for establishing that a particular caste or
part or group within tribes or tribe is included in
Presidential Order if they are not expressly
included. In paragraph 12, following has been laid
down:-
“12. ……………………………………….It appears that the
object of clause (1) of Articles 341 and
342 was to keep away disputes touching
whether a caste/tribe is a Scheduled
Caste/Scheduled Tribe or not for the
purpose of the Constitution. Whether a
particular caste or a tribe is Scheduled
Caste or Scheduled Tribe as the case may
be, within the meaning of the entries
contained in the Presidential Orders
issued under clause (1) of Articles 341
and 342, is to be determined looking to
them as they are. Clause (2) of the said
articles does not permit any one to seek
modification of the said orders by leading
evidence that the caste/Tribe (A) alone is
mentioned in the Order but caste/Tribe (B)
is also a part of caste/Tribe (A) and as
such caste/Tribe (B) should be deemed to
be a Scheduled Caste/Scheduled Tribe as
the case may be. It is only Parliament
that is competent to amend the Orders
issued under Articles 341 and 342. As can
60
be seen from the entries in the schedules
pertaining to each State whenever one
caste/tribe has another name it is so
mentioned in the brackets after it in the
schedules. In this view it serves no
purpose to look at gazetteers or
glossaries for establishing that a
particular caste/tribe is a Scheduled
Caste/Scheduled Tribe for the purpose of
Constitution, even though it is not
specifically mentioned as such in the
Presidential Orders. Orders once issued
under clause (1) of the said articles,
cannot be varied by subsequent order or
notification even by the President except
by law made by Parliament. Hence it is not
possible to say that State Governments or
any other authority or courts or Tribunals
are vested with any power to modify or
vary the said Orders. If that be so, no
inquiry is permissible and no evidence can
be let in for establishing that a
particular caste or part or group within
tribes or tribe is included in
Presidential Order if they are not
expressly included in the Orders. Since
any exercise or attempt to amend the
Presidential Order except as provided in
clause (2) of Articles 341 and 342 would
be futile, holding any inquiry or letting
in any evidence in that regard is neither
permissible nor useful.”
59. The Constitution Bench reiterated that the power
to include or exclude, amend or alter the
Presidential Order is expressly and exclusively
conferred on and vested with the Parliament and
Courts cannot and should not extend jurisdiction to
61
deal with the question as to whether a particular
caste or sub-caste or group or part of tribe is
included in any one of the entries mentioned in the
Presidential Order. Following was laid down in
paragraph 15:-
“15. Thus it is clear that States have no
power to amend Presidential Orders.
Consequently, a party in power or the
Government of the day in a State is
relieved from the pressure or burden of
tinkering with the Presidential Orders
either to gain popularity or secure votes.
Number of persons in order to gain
advantage in securing admissions in
educational institutions and employment in
State services have been claiming as
belonging to either Scheduled Castes or
Scheduled Tribes depriving genuine and
needy persons belonging to Scheduled
Castes and Scheduled Tribes covered by the
Presidential Orders, defeating and
frustrating to a large extent the very
object of protective discrimination given
to such people based on their educational
and social backwardness. Courts cannot and
should not expand jurisdiction to deal
with the question as to whether a
particular caste, sub-caste; a group or
part of tribe or sub-tribe is included in
any one of the entries mentioned in the
Presidential Orders issued under Articles
341 and 342 particularly so when in clause
(2) of the said article, it is expressly
stated that the said Orders cannot be
amended or varied except by law made by
Parliament. The power to include or
exclude, amend or alter Presidential Order
is expressly and exclusively conferred on
62
and vested with Parliament and that too by
making a law in that regard. The President
had the benefit of consulting the States
through Governors of States which had the
means and machinery to find out and
recommend as to whether a particular caste
or tribe was to be included in the
Presidential Order. If the said Orders are
to be amended, it is Parliament that is
in a better position to know having the
means and machinery unlike courts as to
why a particular caste or tribe is to be
included or excluded by law to be made by
Parliament. Allowing the State Governments
or courts or other authorities or
Tribunals to hold inquiry as to whether a
particular caste or tribe should be
considered as one included in the schedule
of the Presidential Order, when it is not
so specifically included, may lead to
problems………………………………….”
60. It is further to be noticed that Constitution
Bench in Milind’s case (supra) has noted the ratio of
earlier two Constitution Bench judgments in B.
Basavalingappa’s case and Bhaiya Lal’s case and in
paragraph 28 has reaffirmed the ration of above two
Constitution Bench judgments. In paragraph 28,
following is laid down:-
“28. Being in respectful agreement, we
reaffirm the ratio of the two Constitution
Bench judgments aforementioned and state
in clear terms that no inquiry at all is
permissible and no evidence can be let in,
to find out and decide that if any tribe
63
or tribal community or part of or group
within any tribe or tribal community is
included within the scope and meaning of
the entry concerned in the Presidential
Order when it is not so expressly or
specifically included. Hence, we answer
Question 1 in the negative.”
61. In view of the ratio of judgments of this Court
as noticed above, the conclusion is inescapable that
the High Court could not have entertained the claim
or looked into the evidences to find out and decide
that tribe “Gowari” is part of Scheduled Tribe “Gond
Gowari”, which is included in the Constitution
(Scheduled Tribes) Order, 1950. It is further clear
that there is no conflict in the ratio of
Constitution Bench judgments of this Court in B.
Basavalingappa’s case and State of Maharashtra Vs.
Milind and Ors.(supra). The ratio of B.
Basavalingappa’s case as noted in paragraph 6 of the
judgment and extracted above is reiterated by
subsequent two Constitution Bench judgments in Bhaiya
Lal’s case and Milind’s case. There being no
conflict in the ratio of the above Three Constitution
Bench judgments, we do not find any substance in
submission of Shri Rohatgi that for resolving the
64
conflict, the matter need to be referred to a larger
Constitution Bench. We, thus, answer question Nos.1
and 2 in following words:-
(i) The High Court in the writ petition giving
rise to these appeals could not have
entertained the claim of a caste “Gowari”
that it be declared a Scheduled Tribe as
“Gond Gowari” included at Entry No.18 of the
Constitution (Scheduled Tribes) Order, 1950
nor High Court could have taken evidence to
adjudicate the above claim.
(ii) There is no conflict in the ratio of the
judgment of Constitution Bench of this Court
in Basavalingappa’s case and Milind’s case.
QUESTION NOS. 3 AND 4
Both the above questions being inter-related are
being taken together.
62. The Scheduled Tribe "Gond Gowari" as existing in
Item No.28 of Entry 18 of Constitution (Scheduled
Tribes) Order, 1950 applicable to State of
65
Maharashtra is continuing in the List of Scheduled
Tribes of Bombay State (now State of Maharashtra)
since 29.10.1956. To a large number of members of the
"Gond Gowari" caste Scheduled Tribe certificates have
been issued by the competent authority in the State
of Maharashtra from time to time. In Writ Petition
No.4779 of 2008(Adivasi Gond Govari(Gowari) Sewa
Mandal through its President vs. State of Maharashtra
and others) the writ petitioner has prayed for
quashing and setting aside the caste validity
certificates issued in the name of respondent Nos. 4
to 19 as "Gond Gowari", Scheduled Tribe. The fact
that before the High Court there was a writ petition
where caste certificates granted to 16 respondents of
"Gond Gowari" were sought to be quashed clearly
proved the existence of community "Gond Gowari".
Although there have been recommendations by the State
of Maharashtra earlier in the year 1967 and
thereafter in the year 1979 to include the “Gowari”
as Scheduled Tribe, the said recommendations were
never accepted by the Parliament since in spite of
passing of several Amendment Acts by the Parliament
66
to the Constitution (Scheduled Tribes) Order, 1950
Entry of "Gond Gowari" in the Scheduled Tribe was
never deleted. A private bill to delete Entry of
"Gond Gowari" and substitute it by Gowari was not
passed by the Parliament and turned down. The High
Court has also referred to and relied on the book
“Tribes and Castes of the Central Provinces of India
by R.V. Russell and Rai Bahadur Hira Lal wherein
castes "Gond Gowari" and “Gowari” were separately
dealt with as distinct castes. It is also on the
record that the State of Maharashtra even though it
had recommended vide letters dated 26.03.1979 and
12.06.1979 to include Gowari in the list of Scheduled
Tribes but on 06.11.1981 State of Maharashtra wrote
to Ministry of Home Affairs, New Delhi where dealing
with the subject of the Scheduled Tribes in paragraph
3(iii) following was stated:
“3(iii) Following tribes do not fulfill the
criteria of S.Ts and hence State Government
does not consider it necessary to include
them in the list of S.Ts of this State and
hence their inclusion is not recommended:
1) Otari
2) Gowari
67
3). Dhangar
4). Mana”
63. Thus, the State Government recommended Gowari not
to be included as they having not fulfilled criteria
of Scheduled Tribe. It is to be noted that in letter
dated 26.03.1979 of the Government of Maharashtra to
the Union of India although recommendation was made
to include Gowari in Scheduled Tribe but there was no
recommendation to delete "Gond Gowari" from the list
of Scheduled Tribes. In letter dated 26.03.1979 with
regard to Gowari, following statement was made:
“III] GOWARI: The community is at present
included in the list of Scheduled Tribes,
as "Gond Gowari". It has been represented
to Government that Gowari community is not
a sub-group of the tribe, Gond, but is is
a separate tribe in itself. The State
Government had accordingly recommended to
the Government of India to show the Gowari
tribe separately. A copy of Chief
Minister's D.O. Letter dated 27.1.1967 is
enclosed. The tribe Gowari may now be
included, as a separate tribe. The Joint
Committee on the Scheduled Castes and
Scheduled Tribes Orders(Amendment) Bill
1967, had recommended the inclusion of the
community as a separate tribe for Vidarbha
area.”
64. Thus, the recommendation to include Gowari as a
68
separate Scheduled Tribe was forwarded by the State
of Maharashtra in the year 1979 which was withdrawn
in 1981 and after 1981 the State's stand has been
that "Gond Gowari" and “Gowari” are two separate
castes and Gowari is not entitled for the benefit of
Scheduled Tribe certificate. The Government of State
of Maharashtra, Tribal Development Department has
issued G.R. dated 24.04.1985 where the State
Government has referred to "Gond Gowari" as small
sub-Tribe of Gond and non-Scheduled Tribe caste was
referred as Gowari. Along with the Government
Resolution dated 24.04.1985 a comparative Chart was
annexed of Scheduled Tribe and non-Scheduled Tribe
community which was claiming benefit. It is useful to
extract comparative table which was part of
Government Resolution dated 24.04.1985 which is to
the following effect:
Number of
Scheduled
tribe from
the list and
the tribe,
correspondin
g tribe or
sub-tribe on
that number
General
information of
residence of
Scheduled
tribes,
corresponding
tribes, subtribe and
native place,
population of
corresponding
tribe, subNonscheduled
Caste/trib
e which
can obtain
Caste
Certificat
e by
showing
the
similarity
of names
General
places of
residence,
approximate
population
and other
general
information
of Nonscheduled
Caste/Tribe
Traditio
nal
Occupati
on of
Nonschedule
d
Caste/Tr
ibe
Remarks
and
general
informat
ion
69
tribe and other
general
information
(From
column
No.3) of
Scheduled
tribes,
correspond
ing tribes
1 2 3 4 5 6 7
8 (18) Gond
Govari
There is a
small sub tribe
of Gond tribe.
There is no
separate
mention of
population of
this sub-tribe.
Their
population is
merged in
population of
Gond tribe.
This tribe is
found in
Kurkheda
Taluka,
Gadchiroli
district.
People from
Gond tribe who
do animal
farming are
called by
locals “Gond
Govari. In
1901, their
population in
Chandrapur
district was
3000. As they
belong to Gond
tribe, their
language,
social life,
customs,
traditions,
religious
rituals are
that of Gond.
Clan, Family
god/goddess,
surnames and
other is same
as that of
Govari,
Gavari,
Gaygovari,
MilkGovari
The
population
of Govari,
Gavari
should be 2
lakhs. This
caste is
spread
mainly in
Nagpur,
Amravati,
Wardha,
Yavatmal,
Bhandara,
Chandrapur,
Gaadchiroli
districts.
“Krishna,
Ganga,
Jamuna” are
the
worshipping
god/goddesse
s of this
tribe.
Kade-Kodevan
is their
main God.
They have
caste
panchayat
and its
chief is
called
“Gondya”.
They do not
marry in the
same clan.
Clans such
as Tohar,
Ambadare,
Kohachya,
Ravat,
Sakhena,
Thakare,
Their
main
occupati
ons are
Farming,
CowAnimal
Farming,
Producti
on of
Milk,
Husbandr
y.
There is
no
social
relation
of
Govari
and
correspo
nding
tribes
with
Gond
tribe.
There is
no
traditio
nal,
heredita
ry,
language
,
marital
relation
s
between
them.
Gond
Govar do
not milk
the
cows.
They
only do
animal
farming.
Instead
Govari
tribe do
the
producti
on of
milk.
Due to
the
similari
70
Gond. Sonavane. ty of
name of
“Gavari”
word,
people
of
“Govari,
Gavari”
obtain
the
Schedule
d tribe
certific
ate to
take the
benefits
of the
tribe.
65. The above materials which were on the record
before the High Court as well as continuance of "Gond
Gowari" as Scheduled Tribe in the Constitution
(Scheduled Tribes) Order, 1950 for the last more than
60 years, it was not open for the High Court to
proceed into the inquiry as to whether Scheduled
Tribe "Gond Gowari" is not in existence.
66. The High Court in the impugned judgment has
formulated three questions in paragraph 31 of the
judgment which is to the following effect:
“Therefore, the questions involved in
all these cases are threefold as under:
71
(1) Is it permissible for this Court to
hold that it is the Gowari community alone
which is meant by 28th Item "Gond Gowari"
in the cluster of tribes in Entry No. 18
in the Constitution (Scheduled Tribes)
Order?,
(2) Whether there existed any tribe as
"Gond Gowari" as on 29-10-1956, i.e. the
date of its inclusion as 28th Item in Entry
No. 18 of the said Order, other than Gond
and Gowari?,
(3) If there did not exist as such any
tribe as "Gond Gowari", whether it was
Gowari community alone which was included
as 28th Item in Entry No.18 of the said
Order?”
67. The High Court referring to this Court’s judgment
in B. Basavalingappa proceeded to enter into the
material produced by the respondents to the writ
petition as to whether "Gond Gowari" were not in
existence prior to their inclusion in Constitution
(Scheduled Tribes) Order, 1950. We have already held
that the ratio of B. Basavalingappa judgment did not
permit the High Court to enter into the issue as to
whether a Tribe which is included in the Constitution
(Scheduled Tribes) Order, 1950 did not exist. The
High Court proceeded to answer to question Nos. 2 and
3 as noted above in paragraphs 34 to 57.
72
68. Now, we proceed to consider the reasons given by
the High Court in coming to the conclusion that Tribe
"Gond Gowari" became extinct prior to 1911. The High
Court in paragraphs 41 to 43 of the judgment has
noticed the Census of India 1891. The High Court
itself in the aforesaid paragraphs have noted that
Census of 1891 separate figures were given of
“Gowari” and "Gond Gowari". In paragraph 43 following
observations have been made by the High Court:
“43......The separate population
figures of Gowaris and "Gond Gowari"s in
the four districts of (i)Nagpur, (ii)
Wardha, (iii)Chanda, and (iv) Bhandara in
Nagpur Division were shown in the Table
XIII in the Census Report of 1891. The
strength of Gowaris and "Gond Gowari"s in
the said Census was shown in Nagpur as
13,491 and 11, in Wardha as 10,397 and 60,
in Chanda 11,217 and 19, in Bhandara 49212
and 335 respectively in the part of C.P.
and Berar.”
69. The High Court has also noticed the Census of
1901 and noticed that in Nagpur Division the total
population of “Gowari” and "Gond Gowari" was
mentioned. Gowari was mentioned as 91,632 and whereas
"Gond Gowari"s were mentioned in five Districts of
73
Nagpur Division as 2,553. The High Court then
proceeded to examine the Census of 1911 and it
noticed that earlier classification of caste
according to their social precedents was changed
reverting back to the past class classification of
1891 caste in according to traditional occupations,
out of 37 main occupational groups, group IV was of
Forest and Hill Tribes and Group V was of Graziers
and Dairymen. The High Court noticed that in Census
of 1911 Group V in Central Provinces mentioned Gowari
as 157,580 but there was no mention of "Gond Gowari".
Similarly, Census of 1921 of Group V of Graziers and
Dairymen was noticed where Gowari was mentioned as
155,902. After noticing the aforesaid facts from
Census the High Court recorded its conclusion in
paragraph 57 to the following effect:
“57. In our view, the tribe "Gond
Gowari", which was a small hybrid caste
formed by an alliance of Gond and Gowaris
was completely extinct before 1911 Census
and no trace of it was found either in the
Maratha country of the C.P. and Berar or
in the State of Madhya Pradesh. We,
therefore, hold that there did not exist
any tribe as "Gond Gowari" as on 29-10-
1956, i.e. the date of its inclusion as
28th Item in Entry No. 18 of the
Constitution (Scheduled Tribes) Order in
74
relation to the State of Maharashtra and
it was Gowari community alone shown as
"Gond Gowari". We, therefore, answer the
question Nos. (2) and (3) accordingly.”
70. The High Court itself has in its judgment noticed
and found the mention of "Gond Gowari" in Census of
1891 and 1901. The substantial figures of "Gond
Gowari" in the above two Censuses in Nagpur Division
were noticed. The High Court itself having noticed
that the basis of Census in 1911 was changed,
classification was made on the basis of traditional
occupation in which group IV was of Forest and Hill
Tribes and Group V was of Graziers and Dairymen, the
figures of 1911, 1921 and 1931 have been noticed
where in Group V Graziers and Dairymen, there was
mention of Gowari. Mere fact that in Censuses of
1911, 1921 and 1931 figures were given only of Group
V, i.e., Graziers and Dairymen and there was no
mention of "Gond Gowari" cannot lead to conclusion
that "Gond Gowari" have become extinct before 1911. A
Scheduled Tribe which admittedly was in existence and
had a distinct identity shall not be treated to have
become extinct merely because the basis of Census has
75
been changed in the subsequent years. The benefit
given to a Scheduled Tribe cannot be taken away on
the basis of figures given in Census operation only.
There have been amendments in Constitution (Scheduled
Tribes) Order, 1950 from time to time. Several Tribes
were deleted from the list by the Act of Parliament
and several new Tribes were included. There had been
recommendations by the Joint Committee of Parliament
for exclusion of the Tribes which were excluded if
there was no return in respect of those communities
in Censuses of 1961 and 1971. We may refer to
Statement of Objects and Reasons of The Scheduled
Castes and Scheduled Tribes Orders (Amendment) Bill,
1976 which has been stated:
".....The Committee had also recommended
exclusion of certain communities from the
lists of Scheduled Castes and Scheduled
Tribes. These exclusions are not being made
at present and such communities are being
retained in the lists with the present area
restrictions. Such of the communities in
respect of which the Joint Committee had
recommended exclusion on the ground that
there were no returns in respect of these
communities in the censuses of 1961 and
1971.”
71. The above clearly indicates that those Scheduled
76
Tribes and Schedules Castes were excluded if only
there was no return in respect of Census of 1961 and
1971. We, thus, are of the view that the whole basis
of judgment of the High Court that Tribe "Gond
Gowari" was extinct prior to 1911 Census and in
subsequent Censuses 1911, 1921 and 1931 they were not
shown in Group V is completely flawed. The inclusion
of sub-Tribe as "Gond Gowari" in the Constitution
(Scheduled Tribes) Order, 1950 was on 29.10.1956 when
sub-Tribe "Gond Gowari" was included in the Scheduled
Tribe list it has to be presumed that the said
inclusion was after consultation with the State and
after considering the relevant materials. The High
Court could not have questioned the inclusion of the
Scheduled Tribe "Gond Gowari" in the Constitution
(Scheduled Tribes) Order, 1950 on the basis of
reasoning as adopted by the High Court. The High
Court has referred to and relied on the book “Tribes
and Castes of the Central Provinces of India” by R.V.
Russell and Rai Bahadur Hira Lal in which book in
Volume III community Gond, "Gond Gowari" and Gowari
were all separately dealt with, describing "Gond
77
Gowari" in Volume III Russell states:
“Gond-Gowari.--A small hybrid caste formed
from alliances between Gonds and Gowaris or
herdsmen of the Maratha country. Though
they must now be considered as a distinct
caste, being impure and thus ranking lower
than either the Gonds or Gowaris, they are
still often identified with either of them.
In 1901 only 3000 were returned,
principally from the Nagpur and Chanda
Districts. In 1911 they were amalgamated
with the Gowaris, and this view may be
accepted as their origin is the same. The
Gowaris say that the Gond-Gowaris are the
descendants of one of two brothers who
accidentally ate the flesh of a cow. Both
the Gonds and Gowaris frequent the jungles
for long periods together, and it is
natural that intimacies should spring up
between the youth of either sex. And the
progeny of these irregular connections has
formed a separate caste, looked down upon
by both its progenitors. The Gond-Gowaris
have no subcastes, and for purposes of
marriages are divided into exogamous septs,
all bearing Gond names. Like the Gonds, the
caste is also split into two divisions,
worshipping six and seven gods
respectively, and members of septs
worshipping the same number of gods must
not marry with each other.”
72. In the same Volume Gowari has been dealt with:
“Gowari.--The herdsman or grazier caste
of the Maratha country, corresponding to
the Ahirs or Gaolis. The name is derived
from gai or gao, the cow, and means a
cowherd. The Gowaris numbered more than
150,000 persons in 1911, of whom nearly
120,000 belonged to the Nagpur division
and nearly 30,000 to Berar. In localities
78
where the Gowaris predominate, Ahirs or
Gaolis, the regular herdsman caste,are
found only in small numbers. The
honorific title of the Gowaris is Dhare,
which is said to mean 'One who keeps
cattle.' The Gowaris rank distinctly
below the Ahirs or Gaolis.”
73. In the same Volume while describing the subCaste of Gowari following description is given:
“The Gowaris have three divisions, the Gai
Gowari, Inga, and Maria or "Gond Gowari".
The Gai or cow Gowaris are the highest and
probably have more Gaoli blood in them.
The Inga and Maria or "Gond Gowari"s are
more directly derived from the Gonds.
Maria is the name given to a large section
of the Gond tribe in Chanda. Both the
other two subcastes will take cooked food
from the Gai Gowaris and the "Gond
Gowari"s from the Inga, but the Inga
subcaste will not take it from the Gond,
nor the Gai Gowaris from either of the
other two. The "Gond Gowari"s have been
treated as a distinct caste and a separate
article is given on them, but at the
census Mr. Marten has amalgamated them
with the Gowaris. This is probably more
correct, as they are locally held to be a
branch of the caste. But their customs
differ in some points from those of the
other Gowaris. They will admit outsiders
from any respectable caste and worship the
Gond gods, [115] and there seems no harm,
therefore, in allowing the separate
article on them to remain.”
74. In the above passage it has been categorically
stated that "Gond Gowari" has been treated as a
79
distinct caste and in the Census they have been
amalgamated with Gowari. The account given by Russell
does not lead to any conclusion that "Gond Gowari"
were extinct before 1911.
75. It is also relevant to note that it was after
the report of Backward Classes Commission (1955),
where recommendation was made to include Gowari as
sub-Tribe of Gond for the State of Madhya Pradesh,
consequently by Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1956 in State of Madhya
Pradesh "Gond Gowari" was added in Entry 12 and
after re-organisation of the State, in Districts
which came into State of Bombay, "Gond Gowari" was
added by Scheduled Castes and Scheduled Tribes Lists
(Modification) Order, 1956 dated 29.10.1956 "Gond
Gowari" was added. There have been conscious addition
by Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1956 and Scheduled Castes and
Scheduled Tribes Lists (Modification) Order, 1956 as
"Gond Gowari" it cannot be accepted that the
Parliament included Tribe which had become extinct
80
before 1911.
76. The High Court in paragraph 68 of the judgment
has itself referred to Report of Research Officers
dated 12.05.2006. On the basis of the decision taken
in respect Gowari community under the Chairmanship of
Hon'ble Chief Minister on 29.05.2005 Tribal
Development Department was entrusted to ascertain the
facts. The Research Officers on 12.05.2006 personally
visited the areas in which maximum population of
Gowari caste and "Gond Gowari" caste were found in
different villages of District Gadchiroli. It shall
be useful to refer to the paragraph 68 of the
judgment of the High Court which is to the following
effect:
“68. After going through the report
dated 12-5-2006 (wrongly mentioned as '18-
5-2006'), we find that the Research
Officers visited the areas. The Committee
of the Research Officers conducted search
of revenue and school records of certain
claimants. It is the finding of the said
Committee that upon inspection of P-I
Register prior to 1950 in the Taluka
Office of Land Records at Kurkheda, no
evidence is found of the entry "Gond
Gowari", but the evidence is of the
entries of Gowari or Gowara. The Committee
also inspected the school records of the
period prior to 1950 from the Zilla
81
Parishad Primary School, which included
the school admission register and the
affidavits. It found one entry of Gowari
(Gond) made on 1-7-1955 and rest of the
entries are of Gowara or Gowari, which are
also found in the Zilla Parishad Primary
Schools at Ramgad, Yenglekheda, Saletola.
The Research Officers further record the
finding that upon oral interviews of the
villagers, it is found that "Gond Gowari"
tribe is a sub-tribe of Gond and their
cultural traits and customs are found
similar to those of Gond tribe. It further
states that when the information about
Gowari tribe is collected, it was found to
be an independent tribe, having no
similarity in cultural traits and customs
with Gonds or "Gond Gowari"s. The
Committee has tried to lay down the six
tests to make out a distinction between
Gowaris and "Gond Gowari"s.”
77. The High Court in the above paragraph itself has
noticed that the Research Officers conducted research
and has also found Entry of "Gond Gowari" made on
01.07.1955. Thus, the Research Officers before
29.10.1956 found "Gond Gowari" hence the above
evidence which was relied by the High Court itself
proved that "Gond Gowari" Tribe was in existence and
found personally by the Research Officers. Although
in paragraph 68 the above facts were noticed by the
High Court but in paragraph 74 in the heading:
ADJUDICATION BY US in sub-para (3) the High Court
82
states:
“74(3) There is no reason to discard the
report of the Research Officers submitted
on 12/18-5-2006. The Research Officers
personally visited the core area of
residence of Gond Gowaris, inspected the
old record of Zilla Parishad Schools and
the Land Revenue Department, conducted
oral interviews of the villagers, but did
not find any Entry as Gond Gowari or any
person of this tribe. The Research
Officers record the finding that Gowari
tribe has no affinity with Gonds. ”
(emphasis by us)
78. The conclusion of the High Court that Research
Officers did not find any Entry as "Gond Gowari" is
factually incorrect and contrary to what was found in
paragraph 68 as noted above.
79. We have already noted above the Government
Resolution dated 24.4.1985 issued by the Tribal
Development Department of the State, the difference
between “Gond” and "Gond Gowari", the difference in
the character and customs of Scheduled Tribe
community of "Gond Gowari" and community of Gowari as
extracted above. The Government Resolution was issued
after study by the State Government, the High Court
although has noticed above Resolution in paragraph 70
83
of the judgment but has given no reason as to why
differentiation in two Tribes is to be discarded.
80. There is one more reason due to which the
conclusion of the High Court that Scheduled Tribe
"Gond Gowari" was extinct before 1911 has to be
flawed. The reason is that in Writ Petition No.4779
of 2008 filed by Advasis "Gond Gowari" a prayer was
made to quash the Scheduled Tribe certificates to
"Gond Gowari" granted to respondent Nos. 4 to 19. The
High Court by passing order has called for
certificates of "Gond Gowari" which are dealt with by
the High Court in paragraph 77 to 83. In paragraph 77
following is the discussion by the High Court:
“77. .......The record shows that 22
claimants produced the extracts of P-I
Register maintained by the Taluka Land
Records Departments showing the caste of
their forefathers as "Gond Gowari" prior
to 1950. Except this, none other claimants
out of 136, produced any record of the
period prior to the year 1950, evidencing
their caste/tribe as "Gond Gowari", but
the documents produced by them indicate
their caste/tribe as Gond, Gowara or
Gowari. If the documents produced by all
such 136 claimants prior to 1950 and
subsequent to 1950 are taken into
consideration, the same indicate that 39
claimants produced the documents
indicating their tribe as "Gond Gowari";
84
53 claimants produced the documents
indicating their tribe as Gowari; 29
claimants produced the documents showing
their tribe as Gowara; and 9 claimants
produced the documents showing their tribe
as Gond. This position is also admitted
and demonstrated in the reply filed by the
Committee. ”
81. The High Court further in paragraph 83 after
perusing the records of the Committee found 39
claimants produced the documents which are in the
nature of entries in P-I revenue record pertaining to
the period 1922-1923. When before the High Court
Scheduled Tribe certificates of "Gond Gowari" were
filed in large number and there were documents to
support by the revenue entries some of which are
prior to 1950 and which certificates were sought to
be quashed in the writ petition, the existence of
Scheduled Tribe "Gond Gowari" was very much found.
The Caste Scrutiny Committee having validated the
said certificates it was not open for the High Court
to say that Scheduled Tribe "Gond Gowari" became
extinct prior to 1911. The host of the evidence which
was before the High Court including the Research
Officers' Report dated 12.05.2006 and Scheduled Tribe
85
certificates of the candidates who were “Gond Gowari”
it was not open for the High Court to come to the
conclusion that Scheduled Tribe "Gond Gowari" was
extinct prior to 1911. The High Court summoned all
the certificates and there was no finding that
certificates were fake or persons who were given
certificates are non-existent. The High Court erred
in coming to the conclusion that "Gond Gowari" Tribe
was extinct prior to 1911. We, thus, conclude that
even on the basis of materials which were brought
before the High Court no conclusion could have been
drawn that "Gond Gowari" Tribe was extinct prior to
1911.
82. We, thus, answer Question Nos.3 and 4 in the
following manner:
ANSWER NO.3
The High Court could not have entered into
the issue that "Gond Gowari" which was
Scheduled Tribe mentioned in Constitution
(Scheduled Tribes) Order, 1950 as amended upto
1976 is no more in existence and became extinct
86
before 1911.
ANSWER NO.4
The conclusion of the High Court in the
impugned judgment that "Gond Gowari" Tribe had
been extinct before 1911 is not supported by the
materials which were on record before the High
Court.
QUESTION NO.5 & 6
Both the questions being interconnected are taken
together.
83. The caste ‘Gowari’ and ‘Gond Gowari’ are two
distinct and separate castes. We have extracted the
description of ‘Gowari’ and ‘Gond Gowari’ given by
Russell and Hiralal in the celebrated book, ‘The
Tribes and Castes of Central Provinces of India’.
Russel and Hiralal have separately dealt with
‘Gowari’ and ‘Gond Gowari’ and have categorically
stated that ‘Gond Gowari’ have been treated as
distinct castes from ‘Gowari’. We may also refer to
the book published by Anthropological Survey of
India, People of India, National Series Volume III on
87
“The Scheduled Tribes’, where ‘Gond Gowari’ have been
described in following words: -
“GOND, GOWARI They are a community of
cattle herders who have been referred to by
Russell and Hiralal (1916) as the GondGowari and described as a small hybrid caste
formed by an alliance between the Gonds and
Gowaris. They have been enlisted as Gowari,
a subgroup of the Gond in the Government of
India list for scheduled tribes. Our
findings, however, reveal that they are a
discrete community and not a subgroup of any
other tribe. They are distributed in the
Bhandara, Amravati and Garhchiroli districts
of Maharashtra and in the Balaghat and Sioni
districts of Madhya Pradesh. Marathi is
spoken for both inter-and intra-group
communication. The Devanagari script is
used. The Gowari are short and mediumstatured people with a dark complexion. The
main diet is rice, jowar and wheat, local
pulses and seasonal vegetables. They are
non-vegetarians but do not eat beef.”
84. The ‘Gowari’ which is another backward community
have not been included in the list of Scheduled
Tribes in the above book.
85. We have already referred to the Enquiry Report by
the Tribal Development Department dated 12.05.2006.
The Enquiry Report states following: -
“With connection of knowing the culture,
customs and traditions of Gowari caste and
Gowari Tribe, visits were made to aforesaid
villages and during these visits village
information sheets were given to villagers to
88
be filled by them; also discussions made with
them and their statements were recorded. Also
information was gathered from the rest of the
villagers who did not belong to either of
these two communities about their knowledge
of these two communities. From this
information it has transpired that Gond
Gowari tribe is a sub-tribe of Gond Tribe and
that there is traditional intermixing of food
and marital ties (roti-beti relationship)
between these communities and there are
common cultural customs and traditions
between them. However, having collected the
information about Gowari Caste it has
transpired that it has a separate existence
and its culture, customs and traditions do
not match with culture customs and traditions
of Gond or Gond Gowari Tribe which are
totally different.”
86. We have further noticed the Census of 1891 and
1901 which have been referred by the High Court. The
population of ‘Gowari’ has been shown separately from
the population of ‘Gond Gowari’. We have also noticed
the ratio of the Constitution Bench judgment of this
Court in Basavalingappa and Bhaiya lal as well as
Milind. The High Court could not have undertaken the
enquiry to declare the caste which is not included in
the Scheduled Tribes Order, 1950 as a Scheduled
Tribe. The High Court could not have granted a
declaration that the caste ‘Gowari’ is ‘Gond Gowari’
89
which is referred to in Item 28 of Entry 18 of
Constitutional Scheduled Tribes Order, 1950 amended
as on date.
87. The High Court’s view that ‘Gond Gowari’ is not
a sub-tribe of ‘Gond’, hence, its validity cannot be
tested on the basis of the affinity test specified in
the Government Order dated 24.04.1985 is also not
correct. The report of the first Backward Commission
(1955) by which recommendation was made to add
‘Gowari’ as a sub-tribe of ‘Gond’ was on the basis of
study and research by the Backward Commission which
cannot be brushed aside.
88. We have also noticed the authoritative books on
Tribes in Central India that ‘Gond Gowari’ is a subtribe of ‘Gond’. In the Government Resolution dated
29.04.1985 comparative chart was annexed where
general information regarding Scheduled Tribes and
non-Scheduled Tribes i.e. ‘Gond Gowari’ and ‘Gowari’
have been given. The Government Resolution also
mentioned that ‘Gond Gowari’ is also a small subtribe of ‘Gond’ tribe.
90
89. Shri Rohtagi submits that it has been held by
this Court that with regard to entries of Scheduled
Tribes in Entry 18, all entries be treated to be
separate caste and it is not necessary to prove any
affinity with ‘Gond’. He submits that in the Entry
18, the word “including” was deleted by Scheduled
Caste and Scheduled Tribes Order Amendment Act, 1976,
the effect of which was that all entries of caste in
Entry 18 became independent to ‘Gond’ and no affinity
is to be proved by any community from ‘Gond’. He
submits that ‘Gowari’ to claim the benefit of the
Scheduled Tribe need not prove any affinity with
‘Gond’. He submits that the High Court has rightly
undertaked the exercise to ignore a non-existent
tribe and to extend the benefit of the Scheduled
Tribe. Shri Rohtagi has placed reliance on judgment
of this Court in State of Maharashtra versus Mana
Adim Jamat Mandal ,(2006)4 SCC 98. In the above case,
two questions were raised which have been noticed in
the paragraph 1 of the judgment which is to the
following effect: -
91
“1. What appears to be a perpetual
controversy with regard to the Scheduled
Tribe status has again engaged the attention
of this Court for a considerable time. Two
questions are raised before us:
1.Whether the “Mana” community in the
State of Maharashtra is a sub-tribe
of “Gond” and is a Scheduled Tribe
or not?
2.Whether a two-Judge Bench decision
of this Court in Dina v. Narayan
Singh (for the sake of brevity “Dina
I”) and the decision rendered by
another two-Judge Bench of this
Court in Dadaji v. Sukhdeobabu (for
the sake of brevity “Dina II”) are
overruled by a Constitution bench of
this Court in State of Maharashtra
v. Milind?”
90. The caste ‘Mana’ was also one of the castes
which was included in the Entry 18. By the Government
Resolution dated 24.04.1985, it was directed that
‘Mana’ community be not treated as Scheduled Tribe
unless they establish relationship or affinity with
‘Gond’ which Government Resolution was also under
challenge in the above case.
91. This Court in the above judgment noticed the
deletion of word “including” in Entry 18 and came to
the conclusion that Mana is not a sub-tribe of
‘Gond’. Following was laid down in paragraph 30: -
92
“30. The common pattern found in most of the
group entries is that there is a punctuation
mark comma (,) between one entry and another
entry in the group signifying that each one
of them is deemed to be a separate Scheduled
Tribe by itself. In the present case, Entry
o18 of the Schedule clearly signifies that
each of the tribes mentioned therein is
deemed to be a separate tribe by itself and
not a sub-tribe of “Gond”. “Gond” is a
Schedule Tribe, it is not disputed. As
already noticed that “Gond” including Arakh
or Arrakh, etc. found in Entry 12 of the
Amendment Act 63 of 1956 has been done away
with by the Amendment Act of 1976. In Entry
18 of the Second Schedule of the Amendment
Act of 1976 the word “including” was
deliberately omitted, which signifies that
each one of the tribes specified in Entry 18
is deemed to be a separate tribe by itself.
Therefore, “Mana” is not a sub-tribe of
“Gond” but a separate tribe by itself and is
a Schedule Tribe.”
92. What was laid down by this Court with regard to
‘Mana’ which was also a tribe included in Entry 18 is
not applicable with regard to Entry ‘Gond Gowari’.
With the ‘Gowari’ word ‘Gond’ is prefixed. The
expression ‘Gond Gowari’ clearly expresses that the
community ‘Gond Gowari’ has to do with tribe ‘Gond’
The community ‘Mana’ has no such indication and
insofar as ‘Gond Gowari’ is concerned we are clear in
our view that ‘Gond Gowari’ is a community which has
93
affinity with ‘Gond’ and is sub-tribe of ‘Gond’. The
entry of ‘Gond Gowari’ in Scheduled Tribes Order 1950
was as a sub-tribe of ‘Gond’ which is clear from a
report of the Backward Classes Commission, 1955. When
the inclusion of the entry ‘Gond Gowari’ was as (subtribe of Gond), its affinity with ‘Gond’ cannot be
ignored on any basis.
93. The judgment of this Court in State of
Maharashtra versus Mana Adim Jamat Mandal(Supra),
cannot be read as an authority to hold that ‘Gond
Gowari’ has no affinity with ‘Gond’. The judgment of
this Court in State of Maharashtra versus Mana Adim
Jamat Mandal (supra) is solely based on deletion of
word “including” in Entry 18. For the purpose of this
case, we need not delve any further as to what is the
intendment of Parliament in deleting the word
“including” and by deletion of word “including”, all
tribes included in common group i.e. Entry 18 shall
be treated separate and has nothing to do with
‘Gond’.
94. We entertain our own doubts about the
correctness of the ratio of judgment in the State of
94
Maharashtra versus Mana Adim Jamat Mandal with regard
to a group entry. As per Article 342(1), tribes or
tribal communities or parts or groups within tribes
or tribal communities shall for the purposes of the
Constitution be deemed to be Scheduled Tribes. There
has to be some purposes for joining number of tribes
together in one entry, but as observed above in case
with regard to ‘Gond Gowari’ the affinity is more
than apparent with ‘Gond’ and the judgment of this
Court in State of Maharashtra versus Mana Adim Jamat
Mandal (Supra) cannot be read as an authority to hold
that ‘Gond Gowari’ is not a sub-tribe of ‘Gond’ and
no affinity is required to be established with Gond
by the tribe ‘Gond Gowari’. We thus do not find any
infirmity in Government Resolution dated 24.04.2984
insofar as Scheduled Tribe ‘Gond Gowari’ is
concerned.
95. In view of the foregoing discussion we answer
question No.5 and 6 in following manner: -
ANSWER NO.5
95
The caste ‘Gowari’ is not the same as ‘Gond
Gowari’. The High Court could not have granted
declaration of caste ‘Gowari’ as ‘Gond Gowari’.
ANSWER NO.6
The High Court is not correct in its view that
‘Gond Gowari’ shown as item No.28 in Entry 18 of
Scheduled Tribes Order, 1950, is not a sub-tribe
of ‘Gond’. The validity of caste certificate to
‘Gond Gowari’ has to be tested on the basis of
affinity test as specified in the Government
Resolution dated 24.04.1985.
96. In view of the foregoing discussion, none of the
reasons given by the High Court in paragraph 74 of
the judgment are sustainable to hold that ‘Gowari’
are entitled to Scheduled Tribes Certificate of ‘Gond
Gowari’. The entire basis of the judgment of the High
Court that tribe ‘Gond Gowari’ was completely extinct
before 1911 having been found to be flawed, the
entire basis of judgment is knocked out.
96
97. Much emphasis has been given by the learned
counsel for the respondents that the State Government
having recommended in 1967 and 1979 to include
‘Gowari’ in the list of Scheduled Tribes, it could
not have changed its view subsequently. One of the
reasons given by the High Court in paragraph 74(2) is
as follows: -
“74(2). We accept the view taken by the
Central and the State Government that - (a)
Gowari community is included in the
Scheduled Tribes Order of the State as ‘Gond
Gowari’ and it is wrongly projected as a
sub-tribe of Gond, (b) Gowari is an
independent tribe and not a sub-tribe of
Gond, and (c) it is the Gowari community
which will have to be issued the certificate
as Gond Gowari.”
98. When the State has expressly after 1979 has
written to the Government of India on 06.11.1981 that
‘Gowari’ community does not fulfill the criteria of
Scheduled Tribe and thereafter after 1984, several
studies were conducted by Tribal department in State
of Maharashtra including report dated 12.05.2006
which reaffirms that ‘Gond Gowari’ and ‘Gowari’ are
distinct community and ‘Gowari’ is not Scheduled
Tribe, there was no error in taking stand before the
97
High Court in the writ petition that ‘Gowari’ are not
entitled for Scheduled Tribe Certificate. We fail to
understand as to how the High Court has observed that
it accepts the view of the Central and State
Government that ‘Gowari’ community be included in the
Scheduled Tribe Order.
99. Learned Counsel for the petitioner has also
relied on the report dated 29.10.2020 submitted by
Tata Institute of Social Sciences, Mumbai on “Socio
Anthropological study of ‘Gowari’ community of
Maharashtra” in which report, the conclusion has been
recorded that there are major differences between
‘Gond Gowari’ and ‘Gowari’. It is relevant to notice
that the High Court has noticed the decision of the
State Government to entrust the study to Tata
Institute of Social Sciences which facts have been
noticed in paragraph 86 of the judgment. Although the
report dated 29.10.2020 which has been brought on the
record do reaffirms the stand taken by the State that
both the communities are distinct and different and
‘Gowari’ are not Scheduled Tribe but we need not base
our judgment on such report benefit of which report
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was not available to the High Court while deciding
the writ petition.
100. Now, we come to the last submission of Shri
Rohtagi. Shri Rohtagi submits that Scheduled Tribe
Certificate to the members of ‘Gowari’ community was
granted after the judgment of the High Court dated
14.08.2018, on the basis of which certificates large
number of students have taken admission in different
educational institutions taking benefit of Scheduled
Tribes as well as employment at various places as
Scheduled Tribes candidates which need to be
protected by this Court. After the declaration
granted by the High Court, the authorities proceeded
to grant Scheduled Tribe certificate to the ‘Gowari’
community and it is true that on strength of such
Scheduled Tribe certificate, several students must
have taken admission in different courses as
Scheduled Tribe candidate and persons have also
secured employment as Scheduled Tribe candidate. The
State of Maharashtra has belatedly filed these
appeals which delay in filing these appeals have
already been condoned by us and there being no
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interim orders in these appeals staying the effect of
judgment of the High Court, grant of Scheduled Tribe
certificate was natural consequence of the judgment
of High Court.
101. We in the ends of justice directs that the
admission taken and employment secured by the members
of ‘Gowari’ community on the basis of Scheduled Tribe
certificate granted to them between 14.08.2018 till
date shall not be affected by this judgment and they
shall be allowed to retain the benefit of Scheduled
Tribe obtained by them. However, the above Scheduled
Tribe candidates shall not be entitled to any further
benefit as Scheduled Tribe except their initial
admission in different courses or employment at
different places on the strength of Scheduled Tribe
certificate given to the ‘Gowari’ Community obtained
between 14.08.2018 and this day.
102. In view of the foregoing discussions, we are of
the view that the High Court erred in declaring
‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referred
to in item 28 in Entry 18.
103. In result, we allow the appeals, set aside the
impugned judgment of the High Court dated 14.08.2018
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and dismiss the writ petitions. Parties shall bear
their own costs.
......................J.
( ASHOK BHUSHAN )
......................J.
( R. SUBHASH REDDY )
......................J.
( M.R. SHAH )
New Delhi,
December 18, 2020.
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