Tansfer petitions in respect of writs -validity of Chapter VI of Guidelines No.1- CA(7)/02/2008 dated 08.08.2008 issued by the Council of petitioner Institute on the ground that the same is violative of Article 19(1)(g) of the Constitution of India. The said Chapter VI of the Guidelines dated 08.08.2008 stipulates that a member of the Institute in practice shall not accept, in a financial year, more than the “specified number of tax audit assignments”, which is at present 60 under Section 44AB of the Income-tax Act, 1961. Further, Section 22 of the Chartered Accountants Act, 1949 defines “professional or other misconduct” to include 2 any act or omission provided in any of the Schedules to the Act. Clause (1) of Part II of the Second Schedule to the Act stipulates that a member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct if he contravenes any of the provisions of the Act or the regulations made thereunder or any guidelines issued by the Council of the Institute. As such, if a member of the Institute contravenes the provisions of the aforesaid Chapter VI of the Guidelines dated 08.08.2008, he shall be deemed to be guilty of professional misconduct under the Chartered Accountants Act, 1949.

REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO(S). 2849-2859/2019

THE INSTITUTE OF CHARTERED

ACCOUNTANTS OF INDIA & ORS. ...PETITIONER (S)

VERSUS

SHAJI POULOSE & ORS. ...RESPONDENT(S)

WITH

TRANSFER PETITION (CIVIL) NO(S). 727-728/2020

J U D G M E N T

 ASHOK BHUSHAN,J.

These transfer petitions have been filed by the

Institute of Chartered Accountants of India under

Article 139-A(1) of the Constitution of India read

with Order XL Rule 1 of the Supreme Court Rules, 2013

for transfer of several writ petitions pending in the

Kerala High Court, Madras High Court and Calcutta

High Court.

1

2. Notices were issued in the transfer petitions. A

counter affidavit has also been filed by one of the

respondents, i.e., respondent No.1.

3. We have heard Shri Arvind Datar, learned senior

counsel for the petitioners and Shri R. Basant,

learned senior counsel and other counsel appearing

for respondents.

4. In the writ petitions, which are sought to be

transferred, writ petitioners have challenged

validity of Chapter VI of Guidelines No.1-

CA(7)/02/2008 dated 08.08.2008 issued by the Council

of petitioner Institute on the ground that the same

is violative of Article 19(1)(g) of the Constitution

of India. The said Chapter VI of the Guidelines

dated 08.08.2008 stipulates that a member of the

Institute in practice shall not accept, in a

financial year, more than the “specified number of

tax audit assignments”, which is at present 60 under

Section 44AB of the Income-tax Act, 1961. Further,

Section 22 of the Chartered Accountants Act, 1949

defines “professional or other misconduct” to include

2

any act or omission provided in any of the Schedules

to the Act. Clause (1) of Part II of the Second

Schedule to the Act stipulates that a member of the

Institute, whether in practice or not, shall be

deemed to be guilty of professional misconduct if he

contravenes any of the provisions of the Act or the

regulations made thereunder or any guidelines issued

by the Council of the Institute. As such, if a

member of the Institute contravenes the provisions of

the aforesaid Chapter VI of the Guidelines dated

08.08.2008, he shall be deemed to be guilty of

professional misconduct under the Chartered

Accountants Act, 1949.

5. Learned senior counsel submits that in order to

avoid multiplicity of proceedings, conflict of

decisions and also settle the law comprehensively,

which is a question of law of general public

importance, the Institute of Chartered Accountants of

India being the regulatory body for the profession of

Chartered Accountants has filed the present transfer

petitions for transfer of all the aforesaid writ

3

petitions to this Court for final and conclusive

determination of the issues involved.

6. Shri R. Basant, learned senior counsel appearing

for the respondent and other counsels have submitted

that there is no good reason for transfer of the writ

petitions pending in the different High Courts. it

is submitted that the only reason of transfer of the

writ petitions is convenience of the petitioners,

whereas the constitutional protection and right

availed by the writ petitioners under Article 226 of

the Constitution will be taken away, if the transfer

is allowed. The provisions of Article 139A is an

exception to the general rule of law, which can be

exercised only rarely and in exceptional

circumstances. By the impugned Guidelines, the

applicants have introduced a cap on the number of

audit assignments that can be taken up by each

Chartered Accountant throughout the country

irrespective of the nature of the audit, the nature

and volume of business of the clients, the local

conditions, local laws, the place of practice of each

Chartered Accountant etc., all these questions are

4

important while deciding the question of breach of

Articles 14 and 19(1)(g) of the Constitution. It is

necessary that this Court may have the advantage of

the judgments of different High Courts in different

parts of the country. It is submitted that there are

earlier occasions where such transfer petitions have

been dismissed. It is further submitted that in

event, it is found necessary to transfer all writ

petitions be transferred to one High Court instead of

transferring petitions to this Court. It is lastly

submitted by learned counsel for the respondent that

in several writ petitions, various interim orders are

operating in favour of the writ petitioners, which

may be allowed to continue.

7. We have heard the learned counsel for the parties

and have perused the records.

8. Section 44AB of the Income-tax Act, 1961 was

inserted in the statute book by the Finance Act, 1984

and the same came into force w.e.f. 01.04.1985.

Section 44AB provides that every person carrying on

business, if his total sales, turnover or gross

5

receipts exceed Rs.1 crore, and every person carrying

on a profession, if his gross receipts exceed Rs.50

lakhs, in any previous year, is required to get his

accounts of such previous year audited by a Chartered

Accountant, and obtain before the specified date, a

report of the audit in the prescribed form duly

signed and verified by such Chartered Accountant.

The said provisions are popularly called “compulsory

tax audits”. The said Section 44AB had been enacted

to prevent evasion of taxes, plug loopholes enabling

tax avoidance and also facilitate tax administration,

which would ensure that the economic system does not

result in concentration of wealth to the common

detriment. The said section therefore fulfilled the

directive principles laid down under Article 39(c) of

the Constitution of India.

9. In exercise of the powers conferred by Clause

(ii) of Part II of the Second Schedule to the Act,

the council of the Institute issued a notification

bearing No.1-CA(7)/3/88 dated 13.01.1989 specifying

that a member of the Institute in practice shall be

deemed to be guilty of professional misconduct, if he

6

accepts in a financial year, more than specified

number of tax audit assignments under Section 44AB of

the Income-tax Act, 1961. The specified number being

30 in a financial year, whether in respect of

corporate or non-corporate assesses. One K.

Bhagavatheeswaran, who was a practicing Chartered

Accountant, filed Writ Petition No.5925 of 1989

before the Madras High Court challenging the legality

and validity of the Notification dated 13.01.1989 and

Writ Petition No.5926 of 1989 challenging the

legality and validity of the Notification dated

25.05.1987 being violative of Article 19(1)(g) of the

Constitution. Misc. Petition No.2844 of 1989 - Prem

Chand & Ors. Vs. Institute of Chartered Accountants

of India & Anr. was filed before the High Court of

Madhya Pradesh at Jabalpur, challenging the validity

and legality of the Notification dated 13.01.1989.

10. There were other writ petitions filed in

different High Courts. The transfer petitions were

filed by Institute of Chartered Accountants of India

being Transfer Petition Nos. 614-615 of 1990, which

were rejected by this Court on 03.04.1991 observing

7

that the concerned High Courts may dispose of the

writ petitions at an early date. A Writ Petition

No.2085 of 1993 – Prakash Mehta Vs. ICAI where

validity and legality of the Notification dated

13.01.1989 was challenged, was dismissed on

16.05.2005. Madhya Pradesh High Court vide its

judgments dated 18.04.1995 in Writ Petition No.2844

of 1989 had held that the Notification dated

13.01.1989 does not take away the right of a

Chartered Accountant to carry on profession, against

which judgment, a Special Leave Petition No.21988 of

1995 was filed, in which leave was granted but Civil

Appeal was dismissed as withdrawn by order dated

04.05.1999. Madras High Court vide its judgment

dated 13.07.1998 had allowed the Writ Petition

No.5925 of 1989 – K. Bhagavatheeswaran Vs. Vs.

Institute of Chartered Accountants of India and Ors.,

which judgment was also confirmed by the Division

Bench in a writ appeal.

11. The Chartered Accountants Act, 1949 was amended

by the Parliament by the Chartered Accountants

(Amendment) Act, 2006, after which amendment, the

8

erstwhile Notifications were superseded by Guidelines

dated 08.08.2008. After the above Guidelines, this

Court by order dated 01.04.2013 dismissed the Civil

Appeal Nos.7208-7209 of 2005 having become

infructuous, which order was to the following

effect:-

“In view of the above, we do not

propose to hear the appeals on merit and

the same are dismissed as having become

infructuous. However, in case any member

is aggrieved of the existing guidelines

and files a representation before the

appellant, the appellant shall consider it

and pass appropriate order, and if any

member is aggrieved thereof whether he has

made representation or not, would have

right to challenge it before the

appropriate forum.”

12. After issuance of the Guidelines dated

08.08.2008, various writ petitions have been filed in

different High Courts, details of various writ

petitions as given in the transfer petition are as

follows:-

“(1) W.P. (C) No.25662/2016 titled as

'Shaji Poulose vs. The Institute of

Chartered Accountants of India & Ors.'

Pending before the Hon’ble High Court

of Judicature of Kerala at Ernakulam;

9

(2) W.P. (C) No.12963/2017 titled as ‘T.R.

Mohan Das vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature of Kerala at Ernakulam;

(3) W.P. (C) No.19026/2017 titled as 'E.

Hrishikesan vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature of Kerala at Ernakulam;

(4) W.P. Nos.17956 to 17958/2017 titled as

'Mr. R. Murlidharan vs. The

Comptroller & Auditor General of India

& Ors.' pending before the Hon'ble

High Court of Judicature at Madras;

(5) W.P. NO.22771/2017 titled as 'Radha

Kanta Das vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature at Calcutta;

(6) W.P. (C) No.12273/2019 titled as 'C.

Suresh Kumar vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature of Kerala at Ernakulam;

(7) W.P. No.19162/2019 titled as 'Ms. V.

Gayathri Devi vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature at Madras;

(8) W.P. No.18124/2019 titled as 'Kamalesh

Mitra vs. The Institute of Chartered

Accountants of India & Ors.' pending

10

bolero the Hon’ble High Court at

Calcutta, and

(9) W.P. No.18590/2019 titled as 'Pralay

Chakraborty vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon’ble High Court

at Calcutta.

13. In various writ petitions filed in different High

Courts apart from challenging the guidelines dated

08.08.2008, disciplinary proceedings initiated

against the writ petitioner for violation of the

guidelines dated 08.08.2008 were also challenged. For

example, in writ petition No.25662 of 2016, Shaji

Poulose versus Institute of Chartered Accountant of

India and others, the guidelines dated 08.08.2008 as

well as communication dated 28.03.2015, 23.06.2016

and 13.07.2016 were under challenge. The High Court

issued notice and stayed the disciplinary proceeding

against the writ petitioner therein.

14. Learned counsel for the respondents have also

relied on the judgment of this Court in Institute of

Chartered Accountants of India versus Southern

Petrochemical Industries Corporation Limited and

another, (2007) 15 SCC 649, in which case the

11

Transfer petition was filed in this Court by the

Institute of Chartered Accountants of India for

transferring writ petitions filed in different High

Courts challenging Constitutional validity of

paragraph 33 of Accounting Standard 22 framed by

Institute of Chartered Accountant of India. This

Court allowed the Transfer petition and directed all

the writ petitions to be heard by Calcutta High

Court. Learned counsel for the respondent submits

that this Court may consider transferring all the

writ petitions to any one High Court in the present

matter also.

15. The fact that this Court on 03.04.1991 had

dismissed the Transfer Petition Nos.614-615 of 1990

observing that the concerned High Courts may dispose

of the writ petition on early date cannot be treated

any kind of bar in transferring the writ petition in

the present batch of cases. At the time when the

earlier transfer petition was dismissed, conflicting

judgments on subject in issue by different High

Courts had not come. As noted above, with respect to

the cap on the number of audits, there are

12

conflicting judgments of different High Courts taking

different views on the similar guidelines. Further,

this Court’s judgment in Institute of Chartered

Accountants of India versus Southern Petrochemical

Industries Corporation Limited and another (supra),

transferring the writ petition to one High Court i.e.

Calcutta High Court does not preclude the

consideration of prayer of the petitioner for

transferring the writ petitions to this Court in

present matter.

16. The guidelines which are impugned in the High

Court and consequent disciplinary proceedings

initiated against various chartered accountants

throughout the country is an issue of public

importance affecting Chartered Accountants as well as

the citizens who have to obtain compulsory tax

audits. We are satisfied that to settle the law and

to clear the uncertainty among tax professionals and

citizens, it is appropriate that this Court may

transfer the writ petition, to authoritatively

pronounce the law on the subject.

17. We, however, find substance in the submissions

made by learned counsel for the respondents-writ

13

petitioners that the interim orders operating in

different writ petitions which are sought to be

transferred should be allowed to be continued till

this Court considers the matter and passes any other

order.

18. In result, these Transfer Petitions are allowed.

The writ petitions mentioned above are withdrawn to

this Court.

19. The Registry should transmit this order to the

respective High Courts immediately. The interim

orders passed in the writ petitions which are being

transferred to this Court shall continue till any

other order is passed by this Court.

......................J.

 (ASHOK BHUSHAN )

......................J.

 ( R. SUBHASH REDDY )

......................J.

 ( M .R. SHAH )

New Delhi,

December 09, 2020.

14

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.

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";

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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

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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

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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

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“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

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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’

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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.

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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: -

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“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: -

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“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

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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

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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

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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.

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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

100

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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