Dhirubhai Naranbhai Patel, J. - (1.) THIS Public Interest Litigation has been preferred with the following prayers: - - "a) For issuance of an appropriate writ(s)/order(s)/direction(s) upon the Respondents to include "Khetauri" & Ghatwal/Ghatwar" Communities in the Schedule Tribe List of Jharkhand and to treat them as Schedule Tribes on the basis of Survey records as well as several other documents which goes to prove that the aforesaid Communities were treated as Tribal but because of some error on the part committed by the Respondent Authorities these Communities have been deprived of their valuable rights and claim to recognize as Schedule Tribes and also for the reasons that these two communities have been recommended by the State Govt. to the Central Govt. for necessary action."
(2.) HAVING heard both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Public Interest Litigation mainly for the reasons and grounds: - - "(I) The prayer for inclusion of two communities in the list of Scheduled Tribes, so far as the State of Jharkhand is concerned, this can be done under Article 342 of the Constitution of India. For ready reference, Article 342 of the Constitution of India reads as under: - - "342. (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. (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." (ii) It is a prerogative power of His Excellency the President of India, with respect to any State, after consultation with the Governor thereof, to specify the tribes or tribal communities as Scheduled Tribes, in relation to the State. (iii) Whenever thee is a power vested in any person, as per the jurisprudence, there is no corresponding duty nor there is any corresponding right vested in any one. (iv) Thus, when there is a power vested in His Excellency the President of India, that does not mean that thee is a public duty vested in anyone, nor, thee is any right vested in the public in India. Hence, not to specify any Caste as well as Scheduled Tribes under Article 341 of the Constitution of India, it cannot be said that it is a breach of public duty by Union of India, because, power and public duty are not the same, nor are they synonymous of each other. Unless there is a public duty or unless there is a breach thereof, no writ of mandamus can be issued upon His Excellency the President of India. (v) This Court will be extremely slow in interfering in such type of purely administrative decision, or, purely a policy decision of Union of India that such community or caste or tribe should be specified as a Scheduled Tribes under Article 342 of the Constitution of India and it is always left at the wisdom of Union of India. There are vast ramifications of such type of inclusion and hence, this Court will not interfere, nor give any direction much less issue, a writ of mandamus for issuance of specific notification about the two castes, namely "Khetauri" & Ghatwal/Ghatwar". (vi) This Court will not modify the list of such type of Tribes which are prescribed by His Excellency The President. It has been held by Hon'ble Supreme Court in the case of B. Basavalingappa v. D. Munichinnappa and others reported in : AIR 1965 SC 1269 paragraphs 4, 5 & 6: - - "4. Article 341 of the Constitution which deals with scheduled castes is as follows: - - "(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 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. "(2) 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." 5. Clause (1) provides that the President may with respect to any 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 the Constitution be deemed to be scheduled castes in relation to that State. The object of this provision obviously is to avoid all disputes as to whether a particular caste is a scheduled caste or not and only those castes can be scheduled castes which are notified in the order made by the President under Art. 341 after consultation with the Governor where it relates to such castes in a State. Clause (2) then provides that Parliament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power was thus given to Parliament to modify the notification made by the President under cl. (1). Further cl. (2) goes on to provide that a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. (2). Clearly, therefore, Article 341 provides for a notification and for its finality except when altered by Parliament by law. The argument on behalf of the appellant is based on the provisions of Art. 341 and it is urged that a notification once made is final and cannot even be revised by the President and can only be modified by inclusion or exclusion by law by Parliament. Therefore, in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to anyone to include any caste as coming within the notification on the basis of evidence -oral or documentary - if the caste in question does not find specific mention in the terms of the notification. It is, therefore, urged that the Tribunal was wrong in allowing evidence to show that Voddar caste was the same as the Bhovi caste mentioned in the Order and that the High Court was in error when it held on the basis of such evidence that Voddar caste was the same as the Bhovi caste specified in the Order and therefore, respondent No. 1 was entitled to stand for election because he belonged to Voddar caste which was the same as the Bhovi caste. 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 deemed to be included in caste A. It may also be accepted that wherever on 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 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." (Emphasis supplied) (vii) It has also been held by Hon'ble Supreme Court in the case of Bhaiya Lal v. reported in : AIR 1965 SC 1557 paragraph 8: - - "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 made 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 Chamara, Jatav or Mochi. The plea that though the appellant is not a Chamara as such, he can claim the same status by reason of the fact that 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 Vodddar 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. (Emphasis supplied) (viii) It has also been held by Hon'ble Supreme Court in the case Parsram and another v. Shivchand and others reported in : AIR 1969 SC 597, paragraphs 4, 5 and 6: - - "4. Before the Reorganisation of the Punjab Act of 1966 item 9 of Part X of the Order specifying the Scheduled Castes in the State read - "Chamar, Jatia Chamar, Raghar, Raigar, Ramdasi or Ravidasi." After the reorganisation of territories and creation of new States by the said Act the Scheduled Castes Order was amended providing for the specification of Scheduled Castes for the new States and territories. The Constitution (Scheduled Castes) (Union Territories) Order of 1951 was also amended in 1966. As a result of the above changes, the final position with regard to the Scheduled Castes was as follows. Item No. 9 remained unaltered as regards the new States of Haryana and the Punjab. Chamars and Mochis were put in the same class as regards the Union territory of Delhi and Himachal Pradesh, while the position in the Union territory of Chandigarh remained the same as in the old State of Punjab. This shows that even when the subject of specification of Scheduled Castes engaged the attention of the President in 1966 he did not take the view that mochis should be classed together with chamars in so far as the State of Haryana, Punjab and the Union territory of Chandigarh were concerned. It is also clear that the question of inclusion of mochis in the scheduled castes was considered by him. Apart from this, there are two decisions of this Court which conclude the point. 5. In Basavalingappa v. D. Munichinnappa, : 1965 -1 SCR 316 : (AIR 1965 SC 1269) an election petition was filed challenging the election of the first respondent inter alia on the ground that he was not a member of any of the scheduled castes mentioned in the Constitution (Scheduled Castes) Order, 1950. Respondent No. 1 claimed that he belonged to the scheduled caste listed as 'Bhovi' in the order. The appellant, on the other hand contended that respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the order and consequently, he could not stand for election from a scheduled caste constituency. It was held by this Court that it was not open to anyone to seek for any modification in the order by producing evidence to show (for example) that though caste A alone was mentioned in the Order, caste B was also a part of Caste A, and as such to be deemed to be included in caste A. This Court also pointed out that "wherever one caste has another name it has been mentioned in brackets after it in the Order. Therefore, generally speaking, it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order." In the peculiar circumstances of this case, evidence was allowed to be led to identify the caste specified in the Order because the Order referred to a Scheduled Caste known as Bhovi in the Mysore State as it was before 1956 and therefore it had to be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentioned the caste Bhovi as a scheduled caste. But when it was not disputed specifically that there was no caste known as Bhovi in the Mysore State before 1956, the only course open to courts was to find which caste was meant by Bhovi by taking evidence. 6. A point very similar to the one before us came up for consideration in this Court in Bhaiya Lal v. Harikrishen Singh, : 1965 -2 SCR 877 : (AIR 1965 SC 1557). There, the appellant's election was challenged on the ground that he belonged to the Dohar caste and was not a chamar. Dealing with this point, it was stated by this Court: "....the plea that the Dohar caste is a sub -caste of the Chamar caste cannot be entertained in the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950." Reference was then made to Article 341 of the Constitution, Cls. 1 and 2 and it was said: "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 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 inquiry of this kind would not be permissible having regard to the provisions contained in Article 341." These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether mochi and chamar in some parts of the State at least meant the same caste although there might be some difference in the professions followed by their members, the main difference being that Chamars skin dead animals which mochis do not. However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a mochi, he could still claim to belong to the scheduled caste of chamars and be allowed to contest an election on that basis. Quite a lot of evidence was adduced orally and also by documents before the learned trial Judge to show that Krishan Lal was a chamar and not a mochi. The learned Judge examined the evidence thoroughly and we do not propose to do the same again. In his view Krishan Lal was a mochi and not a chamar and we do not see any reason why we should come to any different conclusion." (Emphasis supplied) (ix) It has also been held by Hon'ble Supreme Court in the case of Srish Kumar Choudhury v. State of Tripura reported in : AIR 1990 SC 991 paragraphs 16, 20 & 21: - - "16. These authorities clearly indicate, therefore, that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. It is, however, not open to the Court to make any addition or subtraction from the Presidential Order. 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 which covers the Laskar community; but we consider it appropriate to commend to the authorities concerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in tribes is genuine and should, therefore, be entertained. 21. Reservation has become important in view of the increasing competition in society and that probably had led to the anxiety of the appellant and the people in his community to claim reservation. As pointed out by the Constitution Bench judgments which we have referred to above, the basis on which inclusion into or exclusion from the enumerated list made under Art. 342 is contemplated is the changing economic, educational and other situations of the members of any particular tribe. Keeping that in view the State Government may initiate appropriate proposals for modification in case it is satisfied and after appropriate enquiry if the authorities are satisfied that the claim is genuine and tenable, amendment may be undertaken as provided by the Constitution." (Emphasis supplied) (x) It has also been held by Hon'ble Supreme Court in the case of State of Maharashtra v. Milind reported in : (2001) 1 SCC 4 paragraphs 11, 12, 14, 15 and 36: - - 11. By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words "castes" or "tribes" in the expression "Scheduled Castes" and "Scheduled Tribes" are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Articles 341 and 342 for the purpose of the Constitution. Exercising the powers vested in him, the President has issued the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950. Subsequently, some orders were issued under the said articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued, by amendment Acts passed by Parliament. 12. Plain language and clear terms of these articles show (1) the President under clause (1) of the said articles may with respect to any State or Union Territory and where it is a State, after consultation with the Governor, by public notification specify the castes, races or tribes or parts of or groups within the castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes/Scheduled Tribes in relation to that State or Union Territory as the case may be; (2) under clause (2) of the said articles, a notification issued under clause (1) cannot be varied by any subsequent notification except by law made by Parliament. In other words, Parliament alone is competent by law to include in or exclude a caste/tribe from the list of Scheduled Castes and Scheduled Tribes specified in notifications issued under clause (1) of the said articles. In including castes and tribes in Presidential Orders, the President is authorised to limit the notification to parts or groups within the caste or tribe depending on the educational and social backwardness. It is permissible that only parts or groups within them be specified and further to specify castes or tribes thereof in relation to parts of the State and not to the entire State on being satisfied that it was necessary to do so having regard to social and educational backwardness. The States had opportunity to present their views through Governors when consulted by the President in relation to castes or tribes, parts or groups within them either in relation to the entire State or parts of State. 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 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. 14. In the debates of Constituent Assembly (Official Report, Vol. 9) while moving to add new Articles 300 -A and 300 -B after Article 300 (corresponding to Articles 341 and 342 of the Constitution), Dr. B.R. Ambedkar explained as follows: "The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President in consultation with the Governor or ruler of a State should have the power to issue a general notification in the Gazette specifying all the castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purpose of these privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the list so notified or any addition was to be made that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the schedule so published by the President." 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 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. In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one entry or the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included. 36. In the light of what is stated above, the following positions emerge: "1. It is not at all permissible to hold any inquiry or let in any 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. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub -tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority.
(3.) IT is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.;