The State Of Maharashtra vs Keshao Vishwanath Sonone on 18 December, 2020


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Supreme Court of India

The State Of Maharashtra vs Keshao Vishwanath Sonone on 18 December, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                                 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)
Signature Not Verified                      VERSUS
Digitally signed by
Nidhi Ahuja
Date: 2020.12.18
11:13:52 IST
Reason:
          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 Part-

IX 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, 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
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 re-

31
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 sub-

caste 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 sub-

caste 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 sub-
caste 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 pseudo-

status. 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 sub-
caste. 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 sub-
castes/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 sub-
tribe 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 General Non- General Traditio Remarks
Scheduled information of scheduled places of nal and
tribe from residence of Caste/trib residence, Occupati general
the list and Scheduled e which approximate on of informat
the tribe, tribes, can obtain population Non- ion
correspondin corresponding Caste and other schedule
g tribe or tribes, sub- Certificat general d
sub-tribe on tribe and e by information Caste/Tr
that number native place, showing of Non- ibe
population of the scheduled
corresponding similarity Caste/Tribe
tribe, sub- of names

69
tribe and other (From
general column
information No.3) of
Scheduled
tribes,
correspond
ing tribes
1 2 3 4 5 6 7

8 (18) Gond There is a Govari, The Their There is
Govari small sub tribe Gavari, population main no
of Gond tribe. Gaygovari, of Govari, occupati social
There is no Milk- Gavari ons are relation
separate Govari should be 2 Farming, of
mention of lakhs. This Cow- Govari
population of caste is Animal and
this sub-tribe. spread Farming, correspo
Their mainly in Producti nding
population is Nagpur, on of tribes
merged in Amravati, Milk, with
population of Wardha, Husbandr Gond
Gond tribe. Yavatmal, y. tribe.

              This tribe is                    Bhandara,                   There is
              found          in                Chandrapur,                 no
              Kurkheda                         Gaadchiroli                 traditio
              Taluka,                          districts.                  nal,
              Gadchiroli                       “Krishna,                   heredita
              district.                        Ganga,                      ry,
              People       from                Jamuna” are                 language
              Gond tribe who                   the                         ,
              do        animal                 worshipping                 marital
              farming       are                god/goddesse                relation
              called         by                s   of   this               s
              locals      “Gond                tribe.                      between
              Govari.        In                Kade-Kodevan                them.
              1901,       their                is      their               Gond
              population     in                main     God.               Govar do
              Chandrapur                       They     have               not milk
              district      was                caste                       the
              3000.   As they                  panchayat                   cows.
              belong to Gond                   and       its               They
              tribe,      their                chief      is               only do
              language,                        called                      animal
              social      life,                “Gondya”.                   farming.
              customs,                         They do not                 Instead
              traditions,                      marry in the                Govari
              religious                        same    clan.               tribe do
              rituals       are                Clans    such               the
              that of Gond.                    as     Tohar,               producti
              Clan,     Family                 Ambadare,                   on of
              god/goddess,                     Kohachya,                   milk.
              surnames      and                Ravat,                      Due to
              other is same                    Sakhena,                    the
              as    that     of                Thakare,                    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 sub-

Caste of Gowari following description is given:

“The Gowaris have three divisions, the Gai
Gowari, Inga, and Maria or “Gond Gowari”.
The Gai or cow Gowaris are the highest and
probably have more Gaoli blood in them.
The Inga and Maria or “Gond Gowari”s are
more directly derived from the Gonds.
Maria is the name given to a large section
of the Gond tribe in Chanda. Both the
other two subcastes will take cooked food
from the Gai Gowaris and the “Gond
Gowari”s from the Inga, but the Inga
subcaste will not take it from the Gond,
nor the Gai Gowaris from either of the
other two. The “Gond Gowari”s have been
treated as a distinct caste and a separate
article is given on them, but at the
census Mr. Marten has amalgamated them
with the Gowaris. This is probably more
correct, as they are locally held to be a
branch of the caste. But their customs
differ in some points from those of the
other Gowaris. They will admit outsiders
from any respectable caste and worship the
Gond gods, [115] and there seems no harm,
therefore, in allowing the separate
article on them to remain.”

74. In the above passage it has been categorically

stated that “Gond Gowari” has been treated as a
79
distinct caste and in the Census they have been

amalgamated with Gowari. The account given by Russell

does not lead to any conclusion that “Gond Gowari”

were extinct before 1911.

75. It is also relevant to note that it was after

the report of Backward Classes Commission (1955),

where recommendation was made to include Gowari as

sub-Tribe of Gond for the State of Madhya Pradesh,

consequently by Scheduled Castes and Scheduled Tribes

Orders (Amendment) Act, 1956 in State of Madhya

Pradesh “Gond Gowari” was added in Entry 12 and

after re-organisation of the State, in Districts

which came into State of Bombay, “Gond Gowari” was

added by Scheduled Castes and Scheduled Tribes Lists

(Modification) Order, 1956 dated 29.10.1956 “Gond

Gowari” was added. There have been conscious addition

by Scheduled Castes and Scheduled Tribes Orders

(Amendment) Act, 1956 and Scheduled Castes and

Scheduled Tribes Lists (Modification) Order, 1956 as

“Gond Gowari” it cannot be accepted that the

Parliament included Tribe which had become extinct

80
before 1911.

76. The High Court in paragraph 68 of the judgment

has itself referred to Report of Research Officers

dated 12.05.2006. On the basis of the decision taken

in respect Gowari community under the Chairmanship of

Hon’ble Chief Minister on 29.05.2005 Tribal

Development Department was entrusted to ascertain the

facts. The Research Officers on 12.05.2006 personally

visited the areas in which maximum population of

Gowari caste and “Gond Gowari” caste were found in

different villages of District Gadchiroli. It shall

be useful to refer to the paragraph 68 of the

judgment of the High Court which is to the following

effect:

“68. After going through the report
dated 12-5-2006 (wrongly mentioned as ’18-

5-2006′), we find that the Research
Officers visited the areas. The Committee
of the Research Officers conducted search
of revenue and school records of certain
claimants. It is the finding of the said
Committee that upon inspection of P-I
Register prior to 1950 in the Taluka
Office of Land Records at Kurkheda, no
evidence is found of the entry “Gond
Gowari”, but the evidence is of the
entries of Gowari or Gowara. The Committee
also inspected the school records of the
period prior to 1950 from the Zilla
81
Parishad Primary School, which included
the school admission register and the
affidavits. It found one entry of Gowari
(Gond) made on 1-7-1955 and rest of the
entries are of Gowara or Gowari, which are
also found in the Zilla Parishad Primary
Schools at Ramgad, Yenglekheda, Saletola.
The Research Officers further record the
finding that upon oral interviews of the
villagers, it is found that “Gond Gowari”
tribe is a sub-tribe of Gond and their
cultural traits and customs are found
similar to those of Gond tribe. It further
states that when the information about
Gowari tribe is collected, it was found to
be an independent tribe, having no
similarity in cultural traits and customs
with Gonds or “Gond Gowari”s. The
Committee has tried to lay down the six
tests to make out a distinction between
Gowaris and “Gond Gowari”s.”

77. The High Court in the above paragraph itself has

noticed that the Research Officers conducted research

and has also found Entry of “Gond Gowari” made on

01.07.1955. Thus, the Research Officers before

29.10.1956 found “Gond Gowari” hence the above

evidence which was relied by the High Court itself

proved that “Gond Gowari” Tribe was in existence and

found personally by the Research Officers. Although

in paragraph 68 the above facts were noticed by the

High Court but in paragraph 74 in the heading:

ADJUDICATION BY US in sub-para (3) the High Court
82
states:

“74(3) There is no reason to discard the
report of the Research Officers submitted
on 12/18-5-2006. The Research Officers
personally visited the core area of
residence of Gond Gowaris, inspected the
old record of Zilla Parishad Schools and
the Land Revenue Department, conducted
oral interviews of the villagers, but did
not find any Entry as Gond Gowari or any
person of this tribe. The Research
Officers record the finding that Gowari
tribe has no affinity with Gonds. ”
(emphasis by us)

78. The conclusion of the High Court that Research

Officers did not find any Entry as “Gond Gowari” is

factually incorrect and contrary to what was found in

paragraph 68 as noted above.

79. We have already noted above the Government

Resolution dated 24.4.1985 issued by the Tribal

Development Department of the State, the difference

between “Gond” and “Gond Gowari”, the difference in

the character and customs of Scheduled Tribe

community of “Gond Gowari” and community of Gowari as

extracted above. The Government Resolution was issued

after study by the State Government, the High Court

although has noticed above Resolution in paragraph 70

83
of the judgment but has given no reason as to why

differentiation in two Tribes is to be discarded.

80. There is one more reason due to which the

conclusion of the High Court that Scheduled Tribe

“Gond Gowari” was extinct before 1911 has to be

flawed. The reason is that in Writ Petition No.4779

of 2008 filed by Advasis “Gond Gowari” a prayer was

made to quash the Scheduled Tribe certificates to

“Gond Gowari” granted to respondent Nos. 4 to 19. The

High Court by passing order has called for

certificates of “Gond Gowari” which are dealt with by

the High Court in paragraph 77 to 83. In paragraph 77

following is the discussion by the High Court:

“77. …….The record shows that 22
claimants produced the extracts of P-I
Register maintained by the Taluka Land
Records Departments showing the caste of
their forefathers as “Gond Gowari” prior
to 1950. Except this, none other claimants
out of 136, produced any record of the
period prior to the year 1950, evidencing
their caste/tribe as “Gond Gowari”, but
the documents produced by them indicate
their caste/tribe as Gond, Gowara or
Gowari. If the documents produced by all
such 136 claimants prior to 1950 and
subsequent to 1950 are taken into
consideration, the same indicate that 39
claimants produced the documents
indicating their tribe as “Gond Gowari”;

84

53 claimants produced the documents
indicating their tribe as Gowari; 29
claimants produced the documents showing
their tribe as Gowara; and 9 claimants
produced the documents showing their tribe
as Gond. This position is also admitted
and demonstrated in the reply filed by the
Committee. ”

81. The High Court further in paragraph 83 after

perusing the records of the Committee found 39

claimants produced the documents which are in the

nature of entries in P-I revenue record pertaining to

the period 1922-1923. When before the High Court

Scheduled Tribe certificates of “Gond Gowari” were

filed in large number and there were documents to

support by the revenue entries some of which are

prior to 1950 and which certificates were sought to

be quashed in the writ petition, the existence of

Scheduled Tribe “Gond Gowari” was very much found.

The Caste Scrutiny Committee having validated the

said certificates it was not open for the High Court

to say that Scheduled Tribe “Gond Gowari” became

extinct prior to 1911. The host of the evidence which

was before the High Court including the Research

Officers’ Report dated 12.05.2006 and Scheduled Tribe

85
certificates of the candidates who were “Gond Gowari”

it was not open for the High Court to come to the

conclusion that Scheduled Tribe “Gond Gowari” was

extinct prior to 1911. The High Court summoned all

the certificates and there was no finding that

certificates were fake or persons who were given

certificates are non-existent. The High Court erred

in coming to the conclusion that “Gond Gowari” Tribe

was extinct prior to 1911. We, thus, conclude that

even on the basis of materials which were brought

before the High Court no conclusion could have been

drawn that “Gond Gowari” Tribe was extinct prior to

1911.

82. We, thus, answer Question Nos.3 and 4 in the

following manner:

ANSWER NO.3
The High Court could not have entered into

the issue that “Gond Gowari” which was

Scheduled Tribe mentioned in Constitution

(Scheduled Tribes) Order, 1950 as amended upto

1976 is no more in existence and became extinct

86
before 1911.

ANSWER NO.4
The conclusion of the High Court in the

impugned judgment that “Gond Gowari” Tribe had

been extinct before 1911 is not supported by the

materials which were on record before the High

Court.

QUESTION NO.5 & 6
Both the questions being interconnected are taken

together.

83. The caste ‘Gowari’ and ‘Gond Gowari’ are two

distinct and separate castes. We have extracted the

description of ‘Gowari’ and ‘Gond Gowari’ given by

Russell and Hiralal in the celebrated book, ‘The

Tribes and Castes of Central Provinces of India’.

Russel and Hiralal have separately dealt with

‘Gowari’ and ‘Gond Gowari’ and have categorically

stated that ‘Gond Gowari’ have been treated as

distinct castes from ‘Gowari’. We may also refer to

the book published by Anthropological Survey of

India, People of India, National Series Volume III on

87
“The Scheduled Tribes’, where ‘Gond Gowari’ have been

described in following words: –

“GOND, GOWARI They are a community of
cattle herders who have been referred to by
Russell and Hiralal (1916) as the Gond-
Gowari 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 medium-
statured people with a dark complexion. The
main diet is rice, jowar and wheat, local
pulses and seasonal vegetables. They are
non-vegetarians but do not eat beef.”

84. The ‘Gowari’ which is another backward community

have not been included in the list of Scheduled

Tribes in the above book.

85. We have already referred to the Enquiry Report by

the Tribal Development Department dated 12.05.2006.

The Enquiry Report states following: –

“With connection of knowing the culture,
customs and traditions of Gowari caste and
Gowari Tribe, visits were made to aforesaid
villages and during these visits village
information sheets were given to villagers to

88
be filled by them; also discussions made with
them and their statements were recorded. Also
information was gathered from the rest of the
villagers who did not belong to either of
these two communities about their knowledge
of these two communities. From this
information it has transpired that Gond
Gowari tribe is a sub-tribe of Gond Tribe and
that there is traditional intermixing of food
and marital ties (roti-beti relationship)
between these communities and there are
common cultural customs and traditions
between them. However, having collected the
information about Gowari Caste it has
transpired that it has a separate existence
and its culture, customs and traditions do
not match with culture customs and traditions
of Gond or Gond Gowari Tribe which are
totally different.”

86. We have further noticed the Census of 1891 and

1901 which have been referred by the High Court. The

population of ‘Gowari’ has been shown separately from

the population of ‘Gond Gowari’. We have also noticed

the ratio of the Constitution Bench judgment of this

Court in Basavalingappa and Bhaiya lal as well as

Milind. The High Court could not have undertaken the

enquiry to declare the caste which is not included in

the Scheduled Tribes Order, 1950 as a Scheduled

Tribe. The High Court could not have granted a

declaration that the caste ‘Gowari’ is ‘Gond Gowari’

89
which is referred to in Item 28 of Entry 18 of

Constitutional Scheduled Tribes Order, 1950 amended

as on date.

87. The High Court’s view that ‘Gond Gowari’ is not

a sub-tribe of ‘Gond’, hence, its validity cannot be

tested on the basis of the affinity test specified in

the Government Order dated 24.04.1985 is also not

correct. The report of the first Backward Commission

(1955) by which recommendation was made to add

‘Gowari’ as a sub-tribe of ‘Gond’ was on the basis of

study and research by the Backward Commission which

cannot be brushed aside.

88. We have also noticed the authoritative books on

Tribes in Central India that ‘Gond Gowari’ is a sub-

tribe 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 sub-

tribe of ‘Gond’ tribe.

90

89. Shri Rohtagi submits that it has been held by

this Court that with regard to entries of Scheduled

Tribes in Entry 18, all entries be treated to be

separate caste and it is not necessary to prove any

affinity with ‘Gond’. He submits that in the Entry

18, the word “including” was deleted by Scheduled

Caste and Scheduled Tribes Order Amendment Act, 1976,

the effect of which was that all entries of caste in

Entry 18 became independent to ‘Gond’ and no affinity

is to be proved by any community from ‘Gond’. He

submits that ‘Gowari’ to claim the benefit of the

Scheduled Tribe need not prove any affinity with

‘Gond’. He submits that the High Court has rightly

undertaked the exercise to ignore a non-existent

tribe and to extend the benefit of the Scheduled

Tribe. Shri Rohtagi has placed reliance on judgment

of this Court in State of Maharashtra versus Mana

Adim Jamat Mandal ,(2006)4 SCC 98. In the above case,

two questions were raised which have been noticed in

the paragraph 1 of the judgment which is to the

following effect: –

91
“1. What appears to be a perpetual
controversy with regard to the Scheduled
Tribe status has again engaged the attention
of this Court for a considerable time. Two
questions are raised before us:

1.Whether the “Mana” community in the
State of Maharashtra is a sub-tribe
of “Gond” and is a Scheduled Tribe
or not?

2.Whether a two-Judge Bench decision
of this Court in Dina v. Narayan
Singh
(for the sake of brevity “Dina
I”) and the decision rendered by
another two-Judge Bench of this
Court in Dadaji v. Sukhdeobabu (for
the sake of brevity “Dina II”) are
overruled by a Constitution bench of
this Court in State of Maharashtra
v. Milind
?”

90. The caste ‘Mana’ was also one of the castes

which was included in the Entry 18. By the Government

Resolution dated 24.04.1985, it was directed that

‘Mana’ community be not treated as Scheduled Tribe

unless they establish relationship or affinity with

‘Gond’ which Government Resolution was also under

challenge in the above case.

91. This Court in the above judgment noticed the

deletion of word “including” in Entry 18 and came to

the conclusion that Mana is not a sub-tribe of

‘Gond’. Following was laid down in paragraph 30: –

92
“30. The common pattern found in most of the
group entries is that there is a punctuation
mark comma (,) between one entry and another
entry in the group signifying that each one
of them is deemed to be a separate Scheduled
Tribe by itself. In the present case, Entry
o18 of the Schedule clearly signifies that
each of the tribes mentioned therein is
deemed to be a separate tribe by itself and
not a sub-tribe of “Gond”. “Gond” is a
Schedule Tribe, it is not disputed. As
already noticed that “Gond” including Arakh
or Arrakh, etc. found in Entry 12 of the
Amendment Act 63 of 1956 has been done away
with by the Amendment Act of 1976. In Entry
18 of the Second Schedule of the Amendment
Act of 1976 the word “including” was
deliberately omitted, which signifies that
each one of the tribes specified in Entry 18
is deemed to be a separate tribe by itself.
Therefore, “Mana” is not a sub-tribe of
“Gond” but a separate tribe by itself and is
a Schedule Tribe.”

92. What was laid down by this Court with regard to

‘Mana’ which was also a tribe included in Entry 18 is

not applicable with regard to Entry ‘Gond Gowari’.

With the ‘Gowari’ word ‘Gond’ is prefixed. The

expression ‘Gond Gowari’ clearly expresses that the

community ‘Gond Gowari’ has to do with tribe ‘Gond’

The community ‘Mana’ has no such indication and

insofar as ‘Gond Gowari’ is concerned we are clear in

our view that ‘Gond Gowari’ is a community which has

93
affinity with ‘Gond’ and is sub-tribe of ‘Gond’. The

entry of ‘Gond Gowari’ in Scheduled Tribes Order 1950

was as a sub-tribe of ‘Gond’ which is clear from a

report of the Backward Classes Commission, 1955. When

the inclusion of the entry ‘Gond Gowari’ was as (sub-

tribe of Gond), its affinity with ‘Gond’ cannot be

ignored on any basis.

93. The judgment of this Court in State of

Maharashtra versus Mana Adim Jamat Mandal(Supra),

cannot be read as an authority to hold that ‘Gond

Gowari’ has no affinity with ‘Gond’. The judgment of

this Court in State of Maharashtra versus Mana Adim

Jamat Mandal (supra) is solely based on deletion of

word “including” in Entry 18. For the purpose of this

case, we need not delve any further as to what is the

intendment of Parliament in deleting the word

“including” and by deletion of word “including”, all

tribes included in common group i.e. Entry 18 shall

be treated separate and has nothing to do with

‘Gond’.

94. We entertain our own doubts about the

correctness of the ratio of judgment in the State of
94
Maharashtra versus Mana Adim Jamat Mandal with regard

to a group entry. As per Article 342(1), tribes or

tribal communities or parts or groups within tribes

or tribal communities shall for the purposes of the

Constitution be deemed to be Scheduled Tribes. There

has to be some purposes for joining number of tribes

together in one entry, but as observed above in case

with regard to ‘Gond Gowari’ the affinity is more

than apparent with ‘Gond’ and the judgment of this

Court in State of Maharashtra versus Mana Adim Jamat

Mandal (Supra) cannot be read as an authority to hold

that ‘Gond Gowari’ is not a sub-tribe of ‘Gond’ and

no affinity is required to be established with Gond

by the tribe ‘Gond Gowari’. We thus do not find any

infirmity in Government Resolution dated 24.04.2984

insofar as Scheduled Tribe ‘Gond Gowari’ is

concerned.

95. In view of the foregoing discussion we answer

question No.5 and 6 in following manner: –

ANSWER NO.5

95
The caste ‘Gowari’ is not the same as ‘Gond

Gowari’. The High Court could not have granted

declaration of caste ‘Gowari’ as ‘Gond Gowari’.

ANSWER NO.6

The High Court is not correct in its view that

‘Gond Gowari’ shown as item No.28 in Entry 18 of

Scheduled Tribes Order, 1950, is not a sub-tribe

of ‘Gond’. The validity of caste certificate to

‘Gond Gowari’ has to be tested on the basis of

affinity test as specified in the Government

Resolution dated 24.04.1985.

96. In view of the foregoing discussion, none of the

reasons given by the High Court in paragraph 74 of

the judgment are sustainable to hold that ‘Gowari’

are entitled to Scheduled Tribes Certificate of ‘Gond

Gowari’. The entire basis of the judgment of the High

Court that tribe ‘Gond Gowari’ was completely extinct

before 1911 having been found to be flawed, the

entire basis of judgment is knocked out.

96

97. Much emphasis has been given by the learned

counsel for the respondents that the State Government

having recommended in 1967 and 1979 to include

‘Gowari’ in the list of Scheduled Tribes, it could

not have changed its view subsequently. One of the

reasons given by the High Court in paragraph 74(2) is

as follows: –

“74(2). We accept the view taken by the
Central and the State Government that – (a)
Gowari community is included in the
Scheduled Tribes Order of the State as ‘Gond
Gowari’ and it is wrongly projected as a
sub-tribe of Gond, (b) Gowari is an
independent tribe and not a sub-tribe of
Gond, and (c) it is the Gowari community
which will have to be issued the certificate
as Gond Gowari.”

98. When the State has expressly after 1979 has

written to the Government of India on 06.11.1981 that

‘Gowari’ community does not fulfill the criteria of

Scheduled Tribe and thereafter after 1984, several

studies were conducted by Tribal department in State

of Maharashtra including report dated 12.05.2006

which reaffirms that ‘Gond Gowari’ and ‘Gowari’ are

distinct community and ‘Gowari’ is not Scheduled

Tribe, there was no error in taking stand before the

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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

98
was not available to the High Court while deciding

the writ petition.

100. Now, we come to the last submission of Shri

Rohtagi. Shri Rohtagi submits that Scheduled Tribe

Certificate to the members of ‘Gowari’ community was

granted after the judgment of the High Court dated

14.08.2018, on the basis of which certificates large

number of students have taken admission in different

educational institutions taking benefit of Scheduled

Tribes as well as employment at various places as

Scheduled Tribes candidates which need to be

protected by this Court. After the declaration

granted by the High Court, the authorities proceeded

to grant Scheduled Tribe certificate to the ‘Gowari’

community and it is true that on strength of such

Scheduled Tribe certificate, several students must

have taken admission in different courses as

Scheduled Tribe candidate and persons have also

secured employment as Scheduled Tribe candidate. The

State of Maharashtra has belatedly filed these

appeals which delay in filing these appeals have

already been condoned by us and there being no
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interim orders in these appeals staying the effect of

judgment of the High Court, grant of Scheduled Tribe

certificate was natural consequence of the judgment

of High Court.

101. We in the ends of justice directs that the

admission taken and employment secured by the members

of ‘Gowari’ community on the basis of Scheduled Tribe

certificate granted to them between 14.08.2018 till

date shall not be affected by this judgment and they

shall be allowed to retain the benefit of Scheduled

Tribe obtained by them. However, the above Scheduled

Tribe candidates shall not be entitled to any further

benefit as Scheduled Tribe except their initial

admission in different courses or employment at

different places on the strength of Scheduled Tribe

certificate given to the ‘Gowari’ Community obtained

between 14.08.2018 and this day.

102. In view of the foregoing discussions, we are of

the view that the High Court erred in declaring

‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referred

to in item 28 in Entry 18.

103. In result, we allow the appeals, set aside the

impugned judgment of the High Court dated 14.08.2018
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and dismiss the writ petitions. Parties shall bear

their own costs.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( R. SUBHASH REDDY )

………………….J.

( M.R. SHAH )
New Delhi,
December 18, 2020.

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