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Court Cannot Alter Presidential Order On Scheduled Tribes: SC Reverses Bombay HC Judgment Declaring ‘Gowari’ As ST

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In a well-written, well-drafted, well-reasoned, well-analyzed and well-articulated judgment titled ‘The State Of Maharashtra & Anr. vs. Keshao Vishwanath Sonone & Anr.’ in Civil Appeal No. 4096 of 2020 (arising out of SLP(C) No. 15044 of 2020) delivered just recently on December 18, 2020, a three Judge Bench of the Apex Court headed by Justice Ashok Bhushan and also comprising of Justice R Subhash Reddy and Justice MR Shah have cogently, commendably, convincingly, clearly and correctly held that a High Court cannot look into the evidences to find out and decide that a particular tribe is part of Scheduled Tribe which is included in the Constitution (Scheduled Tribes) Order, 1950. The Bench observed that the caste ‘Gowari’ and ‘Gond Gowari’ are two distinct and separate castes while it set aside the Bombay High Court judgment that had held that the Gowari community cannot be denied the benefits of a Scheduled Tribe status. Very rightly so!

To start with, the ball is set rolling in para 2 of this judgment wherein it is stated that, “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.”

To be sure, the Bench then brings out in para 3 that, “The Bombay High Court vide judgment dated 14.08.2018 allowed four writ petitions being Writ 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.”

While referring to Writ Petition No.1742 of 2007 – Keshao Vishwanath Sunone Vs. State of Maharashtra and Ors., the Bench observes in para 4 that, “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:-

“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.”

While then referring to Writ Petition No.4779 of 2008 – Adivasi Gond Govari (Gowari) Sewa Mandal through its President Vs. State of Maharashtra and Ors., the Bench then elucidates in para 5 that, “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 requesting 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 as Gond Govari Scheduled Tribe was wrongly issued since the respondents belonged to Gowari community and they did not belong to Gond Govari community.”

To put things in perspective, the Bench then states in para 9 that, “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 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, 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’.”

Going ahead, the Bench then enunciates in para 10 that, “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.”

Coming to the key point, the Bench then goes on to say in para 40 that, “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?

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?

Quite significantly, the Bench then observes in para 61 that, “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 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.

What’s more, the Bench then also goes on to put forth in para 82 that, “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 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.”

Furthermore, the Bench then also moves on to hold in para 95 that, “In view of the foregoing discussion we answer question No.5 and 6 in following manner: –

ANSWER NO.5

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.”

More significantly, the Bench then minces no words to hold in para 96 that, “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.”

Most significantly, the Bench then goes on to hold in para 98 that, “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 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.”

Equally significant if not more is what is then stated in para 100 that, “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 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.”

In view of the aforesaid, the Bench then holds in para 101 that, “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.”

As a corollary, the Bench then holds in para 102 that, “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.”

Finally, the Bench then holds in the last para 103 that, “In result, we allow the appeals, set aside the impugned judgment of the High Court dated 14.08.2018 and dismiss the writ petitions. Parties shall bear their own costs.”

To summarize, we thus see that the Apex Court has laid down in most certain terms that Court cannot alter Presidential order on Scheduled Tribes. Therefore, it rightly reverses the Bombay High Court judgment declaring ‘Gowari’ as ST. All the Courts including the High Court must always abide by what the three-Judge Bench of Apex Court has laid down so explicitly, elegantly and effectively in this leading case now! There certainly can be no ever denying or disputing it!

Sanjeev Sirohi

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