THE STATE OF MAHARASHTRA & ANR. versus KESHAO VISHWANATH SONONE & ANR. on 18 December 2020

[2020] 11 S.C.R. 597

THE STATE OF MAHARASHTRA & ANR.

v.

KESHAO VISHWANATH SONONE & ANR.

(Civil Appeal No. 4096 of 2020)

DECEMBER 18, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Constitution of India – Article 342 –Constitution (ScheduledTribes) Order, 1950 – High Court allowed writ petitions inter aliadeclaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referredto in Entry 18, 1950 Order – On appeal, held: Art.342(2) providesthat any inclusion or exclusion from the list of Scheduled Tribesspecified in a notification issued u/Art.342(1) can be done only byParliament by law – High Court could not have entertained theclaim or looked into the evidences to find out and decide that tribe“Gowari” is part of Scheduled Tribe “Gond Gowari” included inthe 1950 Order – No conflict in the ratio of Constitution Benchjudgments in B. Basavalingappa case reported as [1965] SCR 316and Milind case reported as [2000] 5 Suppl. SCR 65 – Further, HighCourt also could not have entered into the issue that “Gond Gowari”is no more in existence and became extinct before 1911 –Caste‘Gowari’ is not the same as ‘Gond Gowari’ – High Court erred indeclaring ‘Gowari’ as ‘Gond Gowari’, a Scheduled Tribes referredto in item 28 in Entry 18 – Impugned judgment set aside – Writpetitions dismissed – Scheduled Castes and Scheduled Tribes Orders(Amendment) Act, 1956 – States Reorganisation Act, 1956 –Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,1976 – Scheduled Castes and Scheduled Tribes Orders (Amendment)Act, 2002.

Allowing the appeals, the Court

HELD: 1.1 Part XVI of the Constitution deals with “SpecialProvisions relating to certain classes”. Article 342 of theConstitution deals with Scheduled Tribes. Article 366(25) definesScheduled Tribes. In exercise of power under Article 342, thePresident had issued the Constitution (Scheduled Tribes) Order,1950 dated 06.09.1950. The Schedule contains details of

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AScheduled Tribes with reference to different States. Part III tothe Schedule deals with the State of Bombay and Entry No.9 ofPart III mentioned “9. Gond”. Part IV dealt with Madhya Pradeshwhere also Entry No.12 mentions “Gond [including Madia (Maria)and Mudia (Muria)]”. The Parliament passed an Act namely, TheScheduled Castes and Scheduled Tribes Orders (Amendment)BAct, 1956 to provide for the inclusion in, and the exclusion fromthe lists of Scheduled Castes and Scheduled Tribes, of certaincastes and tribes and matters connected therewith. As per Section4 of the Act, 1956, Constitution (Scheduled Tribes) Order, 1950was amended in the manner and to the extent as specified inCSchedule III. In Schedule III, Entry No.9 was substituted byfollowing Entry:- “9. Gond or Rajgond.” Part IV which deals withMadhya Pradesh, Entry 12 was substituted. [Paras 26-30][621-D, G; 622-B, E-H]

1.2 Amendment to the Scheduled Tribes with respect toDMadhya Pradesh was consequent to recommendations by thereport of the Backward Classes Commission also known asKalelkar Commission. With regard to Madhya Pradesh withregard to list of Scheduled Tribes published in Constitution(Scheduled Tribes) Order, 1950 together with the revisionsuggested by the Backward Classes Commission is included inEvolume II of the Report. Entry No.12 in the List of the ScheduledTribes was with respect to Gond [including Madia (Maria) andMudia (Muria)]. Backward Classes Commission suggestedaddition of several sub-tribes of Gond with Gond. Column No.VIof the Table contains heading “Commission’s recommendationFfor inclusion”. The States Reorganisation Act, 1956 was enactedby Parliament to provide for the reorganisation of the States ofIndia and for matters connected therewith. Section 8 providedfor formation of a new Bombay State. By virtue of Section 8(1)(c)certain districts, which then existed in the State of Madhya

Pradesh were included in the new Bombay State. The said districtsGwere earlier part of the State of Madhya Pradesh. Section 41 ofthe States Reorganisation Act provide for modification of theScheduled Castes and Scheduled Tribes Orders with regard toterritorial changes and formation of new States under theprovisions of Part II. In exercise of power under Section 41 ofHthe States Reorganisation Act, Scheduled Castes and Scheduled Tribes Lists modification under Order 1950 was issued dated29.10.1956. Part IV of the Schedule dealt with Bombay. ScheduleIII contains the modification to the Constitution (ScheduledTribes) Order, 1950. Thus, after recommendation of BackwardClasses Commission for the State of Madhya Pradesh by virtueof Act, 1956, with the tribe “Gond” “Gond Govari” was added asthe Scheduled Tribes by modification order dated 29.10.1956.With respect to State of Bombay in specific areas, with regard toentry of Gond as Scheduled Tribe, several sub-tribes including“Gond Govari” was added. [Paras 31-34][624-D-F; 626-B-C, D-F; 628-A-B]

1.3 The Parliament enacted the Scheduled Castes andScheduled Tribes Orders (Amendment) Act, 1976 (Act No.108of 1976) to provide for the inclusion in, and the exclusion fromthe list of Scheduled Castes and Scheduled Tribes, of certaincastes and tribes, for the re-adjustment of representation ofparliamentary and assembly constituencies in so far as such re-adjustment is necessitated by such inclusion or exclusion and formatters connected therewith. The Statements of Objects andReasons of the Bill is relevant. The second Schedule of the Act,1976 provides for substitution in Constitution (Scheduled Tribes)Order, 1950 as indicated therein. With regard to State ofMaharashtra, which was formed, Part IX of the Second Schedule,Entry No.18 deals with Scheduled Tribe “Gond”. Subsequently,the Parliament passed the Scheduled Castes and Scheduled TribesOrders (Amendment) Act, 2002. The only amendment which wasmade with respect to Schedule pertaining to Maharashtra in Entry18 was to the following effect:- “(i) in Part IX – Maharashtra- (i)omit entry 12; (ii) in entry 18 for “Gond Rajgond” substitute“Gond, Rajgond”; (iii) omit entry 45;”

The above amendment in the Scheduled Castes orderindicate the care which was taken by the legislature in describingthe Scheduled Tribes entries. By the above amendment in earlierEntry No.18 of “Gond Rajgond”, substitution was made by whichnow it is read as “Gond, Rajgond”. [Paras 35-39][628-B-D; 629-B-C, E, H; 630-B-C]

1.4 Following questions arise for consideration:- AB

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A1) Whether the High Court in the writ petition giving riseto these appeals could have entertained the claim of the caste“Gowari”, which is not included as Scheduled Tribe in theConstitution (Scheduled Tribes) Order, 1950, that it be declareda Scheduled Tribe as “Gond Govari” which is included at ItemNo.18 of Constitution (Scheduled Tribes) Order, 1950 applicableBin the State of Maharashtra and further to take evidence toadjudicate such claim?

2) Whether the ratio of the judgment of the ConstitutionBench of this Court in B. Basavalingappa Vs. D. Munichinnappa,AIR 1965 SC 1269 permits the High Court to take evidence toCfind out whether ‘Gowari’ are ‘Gond Gowari’ and is there anyconflict in ratio of judgment of Constitution Bench in B.Basavalingappa and subsequent Constitution Bench judgmentof this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC4?

D3) Whether the High Court could have entered into theadjudication of the issue that ‘Gond Gowari’ which is a ScheduledTribe mentioned in Scheduled Tribes Order, 1950, as amendedup to date is no more in existence and was extinct before 1911?

4) Whether the conclusion of the High Court in theEimpugned judgment that ‘Gond Gowari’ Tribe was extinct before1911 is supported on the materials which were on record beforethe High Court?

5) Whether caste ‘Gowari’ is same as ‘Gond Gowari’included at Item No.28, Entry 18 of the Constitution (ScheduledFTribes) Order, 1950 and the High Court could have granteddeclaration to caste ‘Gowari’ as ‘Gond Gowari’ entitled forScheduled Tribe certificate?

6) Whether the High Court is correct in its view that ‘GondGowari’ shown as Item No.28 in Entry 18 of the ConstitutionG(Scheduled Tribes) Order, 1950 is not a sub-tribe of Gond, hence,its validity cannot be tested on the basis of affinity test specifiedin Government Resolution dated 24.04.1985?[Para 40][630-C-H; 631-A-C]

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1.5 QUESTION NOS. 1 AND 2

The Constitution of India contains ample provisions forfulfilment of the Constitutional aspirations of social justice to theScheduled Castes and Scheduled Tribes and to socially andeducationally backward classes of citizens. Articles 341 and 342and Part XIV of the Constitution contains several provisions asspecial provisions relating to certain classes. Article 342 of theConstitution envisages public notification specifying the tribesor tribal communities or parts of or groups within tribes or tribalcommunities which shall be for the purposes of this Constitutionbe deemed to be Scheduled Tribes in relation to a State afterconsultation with Governor thereof. Sub-clause (2) containsanother important provision which provides that any inclusion orexclusion from the list of Scheduled Tribes specified in anotification issued under clause (1) of Article 342 can be doneonly by Parliament by law. Sub-clause (2) of Article 342, thus,contains a provision conferring authority only to the Parliamentto include and exclude a Scheduled Tribe in the list as specifiedin the sub-clause (1) of Article 342. [Para 41][631-C-F]

1.6 The High Court could not have entertained the claimor looked into the evidences to find out and decide that tribe“Gowari” is part of Scheduled Tribe “Gond Gowari”, which isincluded in the Constitution (Scheduled Tribes) Order, 1950.There is no conflict in the ratio of Constitution Bench judgmentsof this Court in B. Basavalingappa’s case and State of MaharashtraVs. Milind and Ors. The ratio of B. Basavalingappa’s case asnoted in paragraph 6 of the judgment is reiterated by subsequenttwo Constitution Bench judgments in Bhaiya Lal’s case andMilind’s case. There being no conflict in the ratio of the aboveThree Constitution Bench judgments, there is no substance insubmission that for resolving the conflict, the matter need to bereferred to a larger Constitution Bench. Thus, question Nos.1and 2 are answered accordingly in following words:-

(i) The High Court in the writ petition giving rise to theseappeals could not have entertained the claim of a caste “Gowari”that it be declared a Scheduled Tribe as “Gond Gowari” includedat Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950

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Anor High Court could have taken evidence to adjudicate the aboveclaim.

(ii) There is no conflict in the ratio of the judgment ofConstitution Bench of this Court in Basavalingappa’s case andMilind’s case. [Para 61][645-G-H; 646-A-D]

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2.1 QUESTION NOS. 3 AND 4

The Scheduled Tribe “Gond Gowari” as existing in ItemNo.28 of Entry 18 of Constitution (Scheduled Tribes) Order, 1950applicable to State of Maharashtra is continuing in the List ofScheduled Tribes of Bombay State (now State of Maharashtra)Csince 29.10.1956. To a large number of members of the “GondGowari” caste Scheduled Tribe certificates have been issued bythe competent authority in the State of Maharashtra from time totime. In Writ Petition No. 4779 of 2008 (Adivasi Gond Govari(Gowari) Sewa Mandal through its President vs. State ofDMaharashtra and others)(one out of the four writ petitions beforethe High Court) the writ petitioner has prayed for quashing andsetting aside the caste validity certificates issued in the name ofrespondent Nos. 4 to 19 as “Gond Gowari”, Scheduled Tribe.The fact that before the High Court there was a writ petitionwhere caste certificates granted to 16 respondents of “GondEGowari” were sought to be quashed clearly proved the existenceof community “Gond Gowari”. Although there have beenrecommendations by the State of Maharashtra earlier in the year1967 and thereafter in the year 1979 to include the “Gowari” asScheduled Tribe, the said recommendations were never acceptedFby the Parliament since in spite of passing of several AmendmentActs by the Parliament to the Constitution (Scheduled Tribes)Order, 1950 Entry of “Gond Gowari” in the Scheduled Tribe wasnever deleted. A private bill to delete Entry of “Gond Gowari”and substitute it by Gowari was not passed by the Parliament andturned down. The High Court has also referred to and relied onGthe book “Tribes and Castes of the Central Provinces of India byR.V. Russell and Rai Bahadur Hira Lal wherein castes “GondGowari” and “Gowari” were separately dealt with as distinctcastes. It is also on the record that the State of Maharashtra eventhough it had recommended vide letters dated 26.03.1979 and12.06.1979 to include Gowari in the list of Scheduled Tribes butH

on 06.11.1981 State of Maharashtra wrote to Ministry of HomeAffairs, New Delhi dealing with the subject of the Scheduled Tribesin paragraph 3(iii). The State Government recommended Gowarinot to be included as they having not fulfilled criteria of ScheduledTribe. It is to be noted that in letter dated 26.03.1979 of theGovernment of Maharashtra to the Union of India althoughrecommendation was made to include Gowari in Scheduled Tribebut there was no recommendation to delete “Gond Gowari” fromthe list of Scheduled Tribes. Thus, the recommendation to includeGowari as a separate Scheduled Tribe was forwarded by the Stateof Maharashtra in the year 1979 which was withdrawn in 1981and after 1981 the State’s stand has been that “Gond Gowari”and “Gowari” are two separate castes and Gowari is not entitledfor the benefit of Scheduled Tribe certificate. The Governmentof State of Maharashtra, Tribal Development Department hasissued G.R. dated 24.04.1985 where the State Government hasreferred to “Gond Gowari” as small sub-Tribe of Gond and non-Scheduled Tribe caste was referred as Gowari. Along with theGovernment Resolution dated 24.04.1985 a comparative Chartwas annexed of Scheduled Tribe and non-Scheduled Tribecommunity which was claiming benefit. The materials which wereon the record before the High Court as well as continuance of“Gond Gowari” as Scheduled Tribe in the Constitution (ScheduledTribes) Order, 1950 for the last more than 60 years, it was notopen for the High Court to proceed into the inquiry as to whetherScheduled Tribe “Gond Gowari” is not in existence. [Paras 62-65][647-A-D, F-G; 648-B-D; 649-E-F]

2.2 The High Court itself has in its judgment noticed andfound the mention of “Gond Gowari” in Census of 1891 and 1901.The substantial figures of “Gond Gowari” in the above twoCensuses in Nagpur Division were noticed. The High Court itselfhaving noticed that the basis of Census in 1911 was changed,classification was made on the basis of traditional occupation inwhich group IV was of Forest and Hill Tribes and Group V was ofGraziers and Dairymen, the figures of 1911, 1921 and 1931 havebeen noticed where in Group V Graziers and Dairymen, therewas mention of Gowari. Mere fact that in Censuses of 1911, 1921and 1931 figures were given only of Group V, i.e., Graziers andDairymen and there was no mention of “Gond Gowari” cannot AB

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Alead to conclusion that “Gond Gowari” have become extinctbefore 1911. A Scheduled Tribe which admittedly was in existenceand had a distinct identity shall not be treated to have becomeextinct merely because the basis of Census has been changed inthe subsequent years. The benefit given to a Scheduled Tribecannot be taken away on the basis of figures given in CensusBoperation only. There have been amendments in Constitution(Scheduled Tribes) Order, 1950 from time to time. Several Tribeswere deleted from the list by the Act of Parliament and severalnew Tribes were included. There had been recommendations bythe Joint Committee of Parliament for exclusion of the TribesCwhich were excluded if there was no return in respect of thosecommunities in Censuses of 1961 and 1971. Statement of Objectsand Reasons of The Scheduled Castes and Scheduled TribesOrders (Amendment) Bill, 1976 clearly indicates that thoseScheduled Tribes and Schedules Castes were excluded if only there was no return in respect of Census of 1961 and 1971. Thus,Dthe whole basis of judgment of the High Court that Tribe “GondGowari” was extinct prior to 1911 Census and in subsequentCensuses 1911, 1921 and 1931 they were not shown in Group Vis completely flawed. The inclusion of sub-Tribe as “Gond Gowari”in the Constitution (Scheduled Tribes) Order, 1950 was onE29.10.1956 when sub-Tribe “Gond Gowari” was included in theScheduled Tribe list it has to be presumed that the said inclusionwas after consultation with the State and after considering therelevant materials. The High Court could not have questionedthe inclusion of the Scheduled Tribe “Gond Gowari” in theConstitution (Scheduled Tribes) Order, 1950 on the basis ofFreasoning as adopted by the High Court. The High Court hasreferred to and relied on the book “Tribes and Castes of theCentral Provinces of India” by R.V. Russell and Rai Bahadur HiraLal in which book in Volume III community Gond, “Gond Gowari”and Gowari were all separately dealt with. “Gond Gowari” hasGbeen treated as a distinct caste and in the Census they have beenamalgamated with Gowari. The account given by Russell doesnot lead to any conclusion that “Gond Gowari” were extinct before1911. [Paras 70, 71 and 74][651-E-H; 652-A-B, D-G; 654-C]

2.3 It was after the report of Backward Classes CommissionH(1955), where recommendation was made to include Gowari as

sub-tribe of Gond for the State of Madhya Pradesh, consequentlyby Scheduled Castes and Scheduled Tribes Orders (Amendment)Act, 1956 in State of Madhya Pradesh “Gond Gowari” was addedin Entry 12 and after re-organisation of the State, in Districtswhich came into State of Bombay, “Gond Gowari” was added byScheduled Castes and Scheduled Tribes Lists (Modification)Order, 1956 dated 29.10.1956 “Gond Gowari” was added. Therehave been conscious addition by Scheduled Castes and ScheduledTribes Orders (Amendment) Act, 1956 and Scheduled Castesand Scheduled Tribes Lists (Modification) Order, 1956 as “GondGowari” it cannot be accepted that the Parliament included Tribewhich had become extinct before 1911. The High Court inparagraph 68 of the judgment has itself referred to Report ofResearch Officers dated 12.05.2006. On the basis of the decisiontaken in respect Gowari community under the Chairmanship ofHon’ble Chief Minister on 29.05.2005 Tribal DevelopmentDepartment was entrusted to ascertain the facts. The ResearchOfficers on 12.05.2006 personally visited the areas in whichmaximum population of Gowari caste and “Gond Gowari” castewere found in different villages of District Gadchiroli. The HighCourt itself has noticed that the Research Officers conductedresearch and has also found Entry of “Gond Gowari” made on01.07.1955. Thus, the Research Officers before 29.10.1956 found“Gond Gowari” hence the above evidence which was relied bythe High Court itself proved that “Gond Gowari” Tribe was inexistence and found personally by the Research Officers. Theconclusion of the High Court that Research Officers did not findany Entry as “Gond Gowari” is factually incorrect and contrary towhat was found in paragraph 68. [Paras 75-78][654-C-H; 655-E-F; 656-A]

2.4 This Court has already noted the GovernmentResolution dated 24.4.1985 issued by the Tribal DevelopmentDepartment of the State, the difference between “Gond” and“Gond Gowari”, the difference in the character and customs ofScheduled Tribe community of “Gond Gowari” and community ofGowari as extracted above. The Government Resolution wasissued after study by the State Government, the High Courtalthough has noticed above Resolution in paragraph 70 of thejudgment but has given no reason as to why differentiation in two AB

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ATribes is to be discarded. There is one more reason due to whichthe conclusion of the High Court that Scheduled Tribe “GondGowari” was extinct before 1911 has to be flawed. The reason isthat in Writ Petition No.4779 of 2008 filed by Advasis “GondGowari” a prayer was made to quash the Scheduled Tribecertificates to “Gond Gowari” granted to respondent Nos. 4 toB19. The High Court by passing order has called for certificates of“Gond Gowari”. The High Court further in paragraph 83 afterperusing the records of the Committee found 39 claimantsproduced the documents which are in the nature of entries in P-I revenue record pertaining to the period 1922-1923. WhenCbefore the High Court Scheduled Tribe certificates of “GondGowari” were filed in large number and there were documentsto support by the revenue entries some of which are prior to1950 and which certificates were sought to be quashed in thewrit petition, the existence of Scheduled Tribe “Gond Gowari”was very much found. The Caste Scrutiny Committee havingDvalidated the said certificates it was not open for the High Courtto say that Scheduled Tribe “Gond Gowari” became extinct priorto 1911. The host of the evidence which was before the HighCourt including the Research Officers’ Report dated 12.05.2006and Scheduled Tribe certificates of the candidates who wereE“Gond Gowari” it was not open for the High Court to come tothe conclusion that Scheduled Tribe “Gond Gowari” was extinctprior to 1911. The High Court summoned all the certificates andthere was no finding that certificates were fake or persons whowere given certificates are non-existent. The High Court erredin coming to the conclusion that “Gond Gowari” Tribe was extinctFprior to 1911. Even on the basis of materials which were broughtbefore the High Court no conclusion could have been drawn that“Gond Gowari” Tribe was extinct prior to 1911. [Paras 79-81][656-B-D, H; 657-A-D]

2.5 Thus, Question Nos.3 and 4 are answered in the followingGmanner:ANSWER NO.3

The High Court could not have entered into the issue that“Gond Gowari” which was Scheduled Tribe mentioned in H

Constitution (Scheduled Tribes) Order, 1950 as amended upto1976 is no more in existence and became extinct before 1911.

ANSWER NO.4

The conclusion of the High Court in the impugned judgmentthat “Gond Gowari” Tribe had been extinct before 1911 is notsupported by the materials which were on record before the HighCourt. [Para 82][657-E-G]

3.1 QUESTION NO.5 & 6

The caste ‘Gowari’ and ‘Gond Gowari’ are two distinct andseparate castes. 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’.The ‘Gowari’ which is another backward community have not beenincluded in the list of Scheduled Tribes in the book published byAnthropological Survey of India, People of India, National SeriesVolume III on “The Scheduled Tribes’. [Paras 83][657-H; 658-A-B]

3.2 This Court has further noticed the Census of 1891 and1901 which have been referred by the High Court. The populationof ‘Gowari’ has been shown separately from the population of‘Gond Gowari’. The ratio of the Constitution Bench judgment ofthis Court in Basavalingappa and Bhaiya lal as well as Milindhasalso been noticed. The High Court could not have undertakenthe enquiry to declare the caste which is not included in theScheduled Tribes Order, 1950 as a Scheduled Tribe. The HighCourt could not have granted a declaration that the caste ‘Gowari’is ‘Gond Gowari’ which is referred to in Item 28 of Entry 18 ofConstitutional Scheduled Tribes Order, 1950 amended as on date.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 theaffinity test specified in the Government Order dated 24.04.1985is also not correct. The report of the first Backward Commission(1955) by which recommendation was made to add ‘Gowari’ as asub-tribe of ‘Gond’ was on the basis of study and research by theBackward Commission which cannot be brushed aside. This Courthas also noticed the authoritative books on Tribes in CentralIndia that ‘Gond Gowari’ is a sub-tribe of ‘Gond’. In the A

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AGovernment Resolution dated 29.04.1985 comparative chart wasannexed where general information regarding Scheduled Tribesand non-Scheduled Tribes i.e. ‘Gond Gowari’ and ‘Gowari’ havebeen given. The Government Resolution also mentioned that‘Gond Gowari’ is also a small sub-tribe of ‘Gond’ tribe.[Paras 86-88][859-B-F]B

3.3 With the ‘Gowari’ word ‘Gond’ is prefixed. Theexpression ‘Gond Gowari’ clearly expresses that the community‘Gond Gowari’ has to do with tribe ‘Gond’. ‘Gond Gowari’ is acommunity which has affinity with ‘Gond’ and is sub-tribe of‘Gond’. The entry of ‘Gond Gowari’ in Scheduled Tribes OrderC1950 was as a sub-tribe of ‘Gond’ which is clear from a report ofthe Backward Classes Commission, 1955. When the inclusion ofthe entry ‘Gond Gowari’ was as (sub-tribe of Gond), its affinitywith ‘Gond’ cannot be ignored on any basis. This Court entertainsits own doubts about the correctness of the ratio of judgment in Dthe State of Maharashtra versus Mana Adim Jamat Mandal withregard to a group entry. As per Article 342(1), tribes or tribalcommunities or parts or groups within tribes or tribal communitiesshall for the purposes of the Constitution be deemed to beScheduled Tribes. There has to be some purposes for joiningnumber of tribes together in one entry, but in case with regard toE‘Gond Gowari’ the affinity is more than apparent with ‘Gond’ andthe judgment of this Court in State of Maharashtra versus ManaAdim Jamat Mandal (Supra) cannot be read as an authority tohold that ‘Gond Gowari’ is not a sub-tribe of ‘Gond’ and no affinityis required to be established with Gond by the tribe ‘GondFGowari’. There is no infirmity in Government Resolution dated24.04.2984 insofar as Scheduled Tribe ‘Gond Gowari’ isconcerned. [Paras 92, 94][661-B-D, F-H; 662-A]

3.4 ANSWER NO.5

The caste ‘Gowari’ is not the same as ‘Gond Gowari’. TheGHigh 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,H

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 asspecified in the Government Resolution dated 24.04.1985. In viewof the foregoing discussion, none of the reasons given by theHigh Court in paragraph 74 of the judgment are sustainable tohold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of‘Gond Gowari’. The entire basis of the judgment of the High Courtthat tribe ‘Gond Gowari’ was completely extinct before 1911having been found to be flawed, the entire basis of judgment isknocked out. [Paras 95, 96][662-B-E]

3.5 When the State has expressly after 1979 written to theGovernment of India on 06.11.1981 that ‘Gowari’ community doesnot fulfill the criteria of Scheduled Tribe and thereafter after 1984,several studies were conducted by Tribal department in State ofMaharashtra including report dated 12.05.2006 which reaffirmsthat ‘Gond Gowari’ and ‘Gowari’ are distinct community and‘Gowari’ is not Scheduled Tribe, there was no error in takingstand before the High Court in the writ petition that ‘Gowari’ arenot entitled for Scheduled Tribe Certificate. [Para 98][663-A-B]

4. In the ends of justice it is directed that the admissiontaken and employment secured by the members of ‘Gowari’community on the basis of Scheduled Tribe certificate granted tothem between 14.08.2018 till date shall not be affected by thisjudgment and they shall be allowed to retain the benefit ofScheduled Tribe obtained by them. However, the aboveScheduled Tribe candidates shall not be entitled to any furtherbenefit as Scheduled Tribe except their initial admission indifferent courses or employment at different places on thestrength of Scheduled Tribe certificate given to the ‘Gowari’Community obtained between 14.08.2018 and this day. The HighCourt erred in declaring ‘Gowari’ as ‘Gond Gowari’ a ScheduledTribes referred to in item 28 in Entry 18.The impugned judgmentof the High Court dated 14.08.2018 is set aside and the writpetitions dismissed. [Paras 101-103][664-B-D]

State of Maharashtra v. Milind and Ors. (2001) 1 SCC4 : [2000] 5 Suppl. SCR 65; B. Basavalingappa v. D.

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AMunichinnappa and Ors. AIR 1965 SC 1269 : [1965] SCR 316; Bhaiya Lal v. Harikishan Singh and Ors.AIR 1965 SC 1557 : [1965] SCR 877 – followed.

Srish Kumar Choudhury v. State of Tripura and Ors.(1990) Suppl. SCC 220 : [1990] SCR 576; Palghat JillaBThandan Smudhaya Samrakshna Samithi and Anr. v.State of Keralaand Anr. (1994) 1 SCC 359 : [1993]3 Suppl. SCR 872; Kumari Madhuri Patil and Anr. v.Addl. Commissioner, Tribal Development and Ors.(1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; NityanandSharma and Anr. v. State of Bihar and Ors. (1996) 3CSCC 576 : [1996] 2 SCR 1 – relied on.

State of Maharashtra v. Mana Adim Jamat Mandal(2006) 4 SCC 98 : [2006] 2 SCR 1142 – held notapplicable.

DAdivasi Gowari Samaj Sanghatan, Maharashtra andAnr. v. Union of India and Ors.Decision dtd. 04.04.1996of High Court of Bombay at Nagpr in Writ PetitionNo.1691 of 1990 – referred to.

Tribes and Castes of the Central Provinces of India byR. V. Russell and Rai Bahadur Hira Lal in which bookEin Volume III – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4096of 2020.

From the Judgment and Order dated 14.08.2018 of the High Courtof Judicature at Bombay, Nagpur Bench in Writ Petition No. 1742 of2007.

With

Civil Appeal No.4098-4100, 4097, 4101 of 2020.

Sanjay Jain, ASG, Shyam Divan, C.U. Singh, Mukul Rohatgi, Sr.Advs., Siddheshwar N. Biradar, Vinayak Bhandari, Ms. Sakshi Ajit Kale,Ravindra Keshavrao Adsure, Yash Prashant Sonavane, JaiprakashBabasaheb Chavan, Ms. Sangita Sagar Pahune Patil, Mohan Sudame,Ms. Sangita Gupta, Amjid Maqbool, Manish Kumar Gupta, MohammedAkhil, Ms. Sansriti Pathak, Raj Bahadur, Amrish Kumar, Ram Parsodkar,Shakul R. Ghatole, Siddharth Dharmadhikari, Ms. Jaikriti S. Jadeja,Ms. Astha Sharma, Abhay Anturkar, Ms. Aagam Kaur, Abhikalp PratapSingh, Ms. Bansuri Swaraj, Siddhesh Kotwal, Divyansh Tiwari, Ms. AnaUpadhyay, Nirnimesh Dube, Sachin Patil, Gagan Sanghi, RameshwarPrasad Goyal, Sudhanshu S. Choudhari, Kunal Cheema, Ms. RuchitaKunal Cheema, Advs. for the appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. These appeals filed against the common judgment dated14.08.2018 of Bombay High Court, Nagpur Bench raise the issues ofseminal importance pertaining to a Scheduled Tribe namely “GondGovari” in the State of Maharashtra included in the Constitution(Scheduled Tribes) Order, 1950 as amended by Scheduled Castes andScheduled Tribes Orders (Amendment) Act, 1976 as applicable in theState of Maharashtra.

3. The Bombay High Court vide judgment dated 14.08.2018 allowedfour writ petitions being Writ Petition No. 1742 of 2007, Writ PetitionNo.4779 of 2008, Writ Petition No. 4032 of 2009 and Writ PetitionNo.1680 of 2012. We may notice in brief the claim of the writ petitionersin the aforesaid writ petitions.

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AWrit Petition No.1742 of 2007 - Keshao Vishwanath SunoneVs. State of Maharashtra and Ors.

4. Keshao Vishwanath Sunone (hereinafter referred to as“Sunone”) claimed himself to belong to Gowari caste. The petitioner’sclaim in the writ petition is that Sunone belong to Gowari caste, whichBcomes under the Scheduled Tribes as there is no Gond Govari caste inexistence. Sunone was appointed as Technical Assistant on 29.08.1983.The caste certificate of Gond Govari Scheduled Tribe was issued toSunone on 03.07.1986. The caste certificate of Sunone was sent forverification of caste. The Caste Scrutiny Committee vide its order dated13.01.2007 invalidated the caste certificate of Sunone. Challenging theCorder of Caste Scrutiny Committee dated 13.01.2007, writ petition wasfiled with following prayers:- “a) issue appropriate writ, order or directions thereby quash andset aside an order passed by the Scheduled Tribe CertificateScrutiny Committee, Amravati Division, Amravati datedD13.1.2007; b)stay and effect and operation of the impugned order dated13.1.2007 passed by the Scheduled Tribe Certificate ScrutinyCommittee, Amravati Division, Amravati during the pendencyof this petition and to protect the services of the petitioners;E

c)grant any other relief as this Hon’ble Court deems fit andproper 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 ofMaharashtra and Ors.F

5. The writ petitioner claimed to be an association working for thewelfare of people belonging to Gond Govari community. The petitionerassociation had filed a writ petition questing the caste validity certificateissued to respondent Nos.4 to 19 as Scheduled Tribe (Gond Govari).Petitioners’ case was that without conducting an enquiry, the caste validityGcertificate was issued. The petitioners’ case further was that the validitycertificate issued as Gond Govari Scheduled Tribe was wrongly issuedsince the respondents belonged to Gowari community and they did notbelong to Gond Govari community.

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6. In the writ petition, the petitioner has prayed for quashing thecaste validity certificates issued to respondent Nos.4 to 19. A furtherdirection was sought that Caste Scrutiny Committee, Nagpur not to issuecaste validity certificate pertaining to Gond Govari Scheduled Tribe andthe detailed inquiries be conducted. It was further prayed thatCommissioner, Tribal Research and Training Institute, Pune and CasteScrutiny Committee Nagpur be directed to conduct full place enquiry inthe relation to Gowari and Gond Govari entries.

Writ Petition No.4032 of 2009 - Adim Gowari Samaj VikasMandal and Ors. Vs. State of Maharashtra and Anr.

7. The petitioner association registered in 2004 claimed to beworking in the field of betterment and welfare of members of peoplebelonging to Gowari community. In the writ petition, reference was madeto the Government Resolution dated 24.04.1985, whereby the Governmentissued guidelines for taking precautionary measures while issuing thetribe certificate. Alongwith the Government Resolution, a chart was issuedcontaining a comparative study, which relate to members of actualScheduled Tribes and other castes having similar nomenclature. Thewrit petition contains a detailed reference to a subsequent GovernmentResolution dated 15.06.1995 where under the Government Resolutionof the State of Maharashtra, Gowari was treated to be other backwardcommunity, special backward class with 2% reservation. In the writpetition, validity of the Government Resolution dated 24.06.1985prescribing the guidelines by way of affinity test to claim the Gowaricommunity 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 ofIndia, Gowari community was included in the other backward classcategory from common Central List in respect of State of Maharashtra.The writ petitioner claimed that Gowari community and its membershave been included in Entry No.18 of the Scheduled Tribes order inrelation to State of Maharashtra. The direction was sought to instructthe Sub-Divisional Magistrate to issue the caste certificates to the personsbelonging to Gowari community as Scheduled Tribes. The writ petitionerhas also challenged the Government Resolutions dated 24.04.1985,13.06.1995 and 15.06.1995. In the writ petition, following prayers weremade:- AB

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A“(a) issue appropriate writ, order or direction in the nature ofmandamus thereby quash and set aside impugned GazetteNotification dated 16.06.2011 (Annexure No.9) issued byGovernment of India as unconstitutional as regards Gowaricommunity and further delete the entry of Gowari communityfrom the common central list of OBC category in respect ofBState of Maharashtra;

(b) by issuance of appropriate writ, order or direction removethe anamoly from the Entry 18 of Para 19 of the ScheduledCastes and Scheduled Tribes Order, 1976 as regards GondGowari community;C

(c) by issuance of appropriate writ, order or direction declarethat the Gowari community and its members have beenincluded in the Entry 18 of Para 19 of Scheduled Castes andScheduled Tribes Order, 1976; D(d) by issuance of appropriate writ, order or direction in the naturemandamus direct the State Government and instruct SubDivisional Offices, Magistrates throughout the State to issuecaste certificates to the people belonging to Gowaricommunity being Scheduled Tribe category people and furtherdirect Cast Scrutiny Committee to issue validity certificatesEto Gowari Community people being Scheduled Tribe; (e) issue appropriate writ, order or direction in the nature ofmandamus, thereby quash and set aside the Govt. Resolution,dt.24.4.1985, 13.6.1995, & 15.6.1995 being illegal, atAnnexure Nos.10, 11 &. 12;F

(f) grant any other relief which may be deemed fit and proper inthe facts and circumstances of the case.”

9. The Division Bench vide its impugned judgment dated14.08.2018 allowed the writ petitions by following order:- G“ORDER

(1) We hold and declare that the tribe Gond Gowari was completelyextinct before 1911 and no trace of it was found either in theMaratha Country of C.P. and Berar or in the State of MadhyaPradesh prior to 1956.

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(2) We hold and declare that there did not exist any tribe as GondGowari as on 29-10-1956, i.e. the date of its inclusion as 28[th] Itemin Entry No. 18 of the Constitution (Scheduled Tribes) Order, 1950in relation to the State of Maharashtra and it was Gowaricommunity alone shown as Gond Gowari, therein.

(3) The tribe Gond Gowari shown as 28[th] Item in Entry No. 18 ofthe said Order is not a sub-tribe of Gond and, therefore, the claimfor its validity cannot be tested on the basis of the guidelines inrespect of affinity test specified in the Government Resolutiondated 24-4-1985.

(4) The people belonging to Gowari community in the State ofMaharashtra cannot be denied the benefits of the Scheduled Tribes,merely because the Gowari community is shown in the list ofSpecial Backward Classes in relation to the State of Maharashtrain the Government Resolutions dated 13-6-1995 and 15-6-1995and as Other Backward Class category in the Gazette Notificationdated 16-6-2011 issued by the Government of India in the commonCentral list in respect of the State of Maharashtra.

(5) The order dated 13-1-2007 passed by the Scheduled TribesCertificate Scrutiny Committee at Amravati, invalidating the claimof the petitioner-Keshao s/o Vishwanath Sonone in Writ PetitionNo. 1742 of 2007, is hereby quashed and set aside. The said matteris remanded back to the Scrutiny Committee to decide it afresh inthe light of the decision of this Court.

(6) We direct the Registry of this Court to get the entire old recordof Census Reports, Parliamentary Debate, Gazetteers, etc., calledfor the purposes of these petitions from the Library, scanned, withina period of six weeks, as it has worn out. The record is veryimportant and it needs to be preserved, as it is also not availableon the ‘Net’.”

10. Aggrieved by judgment of the Division Bench, the State ofMaharashtra has filed Civil Appeals arising out of SLP (C) No.15044 of2020 and SLP (C) Nos. 15045-15047 of 2020. Union of India has alsofiled Civil Appeal arising out of Diary No.17886 of 2020 as well as oneZanaklal Bhaisaku Mangar, who was respondent No.15 in Writ PetitionNo.4779 of 2008 filed by Adivasi Gond Govari (Gowari) Sewa Mandalhas filed SLP (C) No.7901 of 2019 in this Court.

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A11. We have heard Shri Shyam Divan, learned senior counsel,Shri Ravindra Keshavrao Adsure, learned counsel for the appellant, Stateof Maharashtra. Shri Sanjay Jain, learned Additional Solicitor Generalfor the appellant, Union of India and Shri C.U. Singh, learned seniorcounsel for the appellnt-Zanaklal Bhaisaku Mangar. Shri Mukul Rohatgi,learned senior counsel has appeared for the respondents. We have alsoBheard Ms. Bansuri Swaraj, learned counsel for the respondents and otherlearned counsel.

12. Shri Shyam Divan, learned senior counsel submits that theHigh Court committed error in tinkering with the Entries under theConstitution (Scheduled Tribes) Order, 1950 which could only be doneCby a Parliamentary Act as per constitutional provision of Article 342sub-clause (2). A detailed procedure is to be followed to amendConstitution (Scheduled Tribes) Order, 1950 which could not have beendone by the High Court as has been done in the impugned judgment. It issubmitted that Constitution Bench in State of Maharashtra Vs. MilindDand Ors., (2001) 1 SCC 4 has held that Entries in Constitution(Scheduled Tribes) Order, 1950 can only be amended by an Act ofParliament under Article 342(2) and State Governments or Courts orother Authorities or Tribunals cannot hold inquiry so as to see whetherany caste should be considered as included in Constitution (ScheduledTribes) Order, 1950, where it is not specifically mentioned in the same.

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13. Shri Divan submits that Scheduled Tribe, namely, ‘GondGowari’ which is included in Entry 18 of Part-IX of Constitution(Scheduled Tribes) Order, 1950 do exist and is clearly different fromcaste ‘Gowari’. The High Court was in error in holding that Tribe ‘GondGowari’ is an extinct Tribe which is not in existence after 1911. TheFEntry ‘Gond Gowari’ being maintained in Constitution (Scheduled Tribes)Order, 1950 and was not deleted even after several Parliamentary Actswere passed to amend the Constitution (Scheduled Tribes) Order, 1950.The High Court clearly erred in holding that Scheduled Tribe ‘GondGowari’ is not in existence when the caste was included in ConstitutionG(Scheduled Tribes) Order, 1950.

14. Shri Divan submits that Anthropological Expert Report whichwas on record before the High Court also clearly stated that ‘GondGowari’ is a Scheduled Tribe which is different with ‘Gowari’. The caste‘Gowari’ has close affinity with ‘Yadav’ and ‘Ahir’ whereas ‘GondHGowari’ has affinity with ‘Gond’. Both are different in its culture and

customs. Shri Divan has also placed reliance on the report submitted bythe Tata Institute of Social Sciences, Mumbai dated 29.12.2020 on “Socio-Anthropological Study of Gowari Community of Maharashtra”. Hesubmits that in the report after considering all aspects including fieldvisits by research team at different places had found two communities,i.e., ‘Gond Gowari’ and ‘Gowari’ different in customs, worship andsettlement. The report submits that ‘Gond Gowari’ is sub-Tribe of ‘Gond’whereas ‘Gowari’ are cattle graziers. It is submitted that there havebeen several attempts by ‘Gowari’ to obtain status of Scheduled Tribesby including them within the List of Scheduled Tribes throughParliamentary enactment and ‘Gowaris’ having failed in all their attempts,have filed the writ petitions for seeking declaration which could not havebeen granted by a Court of law. The High Court entered into the evidenceto come to the finding that the Tribe ‘Gond Gowari’ was completelyextinct before 1911 which exercise could not have been undertaken inwrit petitions. There are other materials on records which clearly provedthe presence of ‘Gond Gowari’ before and after 1956 and even as ondate and the High Court committed error in holding that the Tribe ‘GondGowari’ was completely extinct before 1911.

15. It is submitted that ‘Gowari’ has already been declared asSpecial Backward Class by the State Government by Resolutions dated13.06.1995 and 15.06.1995 and also included in the category of otherBackward Classes by Government of India notification dated 16.06.2011.The benefit of Resolution has already been availed by ‘Gowari’ and thefact that they have been recognised as Special Backward Class andother Backward Class category by the State of Maharashtra andGovernment of India respectively is indicative of fact that they are notScheduled Tribes but are belonging to other Backward Class.

16. Shri Shyam Divan has also relied on the Division Benchjudgment of the High Court of Bombay at Nagpur dated 04.04.1996delivered in Writ Petition No.1691 of 1990 - Adivasi Gowari SamajSanghatan, 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 approving the action ofauthority in examining the affinity of the writ petitioner with the mainTribe ‘Gond’. Shri Divan submits that there being a Division Benchjudgment rejecting the claim of Gowari which was a judgment of co-ordinate Bench, the High Court in the impugned judgment could nothave taken a contrary view.

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A17. Shri Sanjay Jain, learned Additional Solicitor General in supportof the appeal filed by the Union of India contends that the High Courtfailed to appreciate that list of Scheduled Tribes in relation to a Statewhich is notified by the order of the President after consultation with theState can be modified only through an Act by the Parliament inconsultation with the State Government. The High Court in the impugnedBjudgment has substituted its own opinion in place of the opinion of theParliament which is not permissible in law.

18. Shri C.U. Singh, learned senior counsel for the appellant submitsthat the High Court committed an error in holding that ‘Gond Gowari’are extinct. It is submitted that the High Court has ignored theCParliamentary Committee’s proceedings and studies on the subject. ShriC.U. Singh specifically referring to the Statement of Objects and Reasonsto the “The Scheduled Castes and Scheduled Tribes Orders(Amendment) Bill, 1976” submits that only those communities wereexcluded who were not found in a State in the return of Census of 1961Dand 1971. He submits that the fact that ‘Gond Gowari’ was retained andwas not excluded by the Amendment Act, 1976 clearly points out thatthe Parliament was satisfied with the existence of ‘Gond Gowari’. ShriSingh also referring to Article 338A of the Constitution which has beeninserted by the Constitution (Eighty-Ninth Amendment) Act, 2003 submitsthat National Commission for the Scheduled Tribes having beenEconstituted which is empowered to investigate and monitor all mattersrelating to the safeguards provided for the Scheduled Tribes, withoutreference to National Commission for the Scheduled Tribes, it was notopen for the writ petitioners to file a writ petition for claiming the statusof Scheduled Tribes.Shri C.U. Singh further, submits that in the writFpetition filed before the High Court there was no specific plea that GondGowari was extinct.

19. Shri Ravindra Keshavrao Adsure, learned counsel adoptingthe submissions of Shri Shyam Divan submits that ‘Gowari’ had madeseveral attempts to obtain the benefits of Scheduled Tribes and theyGhaving failed in all their attempts have filed the writ petitions to obtain adeclaration from the Court of Law regarding their status as ScheduledTribes which is not permissible in law.

20. Shri Mukul Rohatgi, learned senior counsel appearing for therespondents supporting the judgment of the High Court contends that itHwas 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 declaringthe ‘Gowari’ as Special Backward Class and other Backward Class,the said Resolutions and notifications were challenged by the writpetitioners in their writ petitions. They never wanted the benefit of SpecialBackward Class or other Backward Class. The High Court has rightlyrestored the benefit of Scheduled Tribes ‘Gowari’ to which they wereentitled in law. Shri Rohatgi submits that the High Court did not commiterror in entering into an issue and returning a finding that ‘Gond Gowari’was extinct before 1911. When ‘Gond Gowari’ was extinct before 1911it was the ‘Gowari’ who were entitled to be treated as Scheduled Tribesin the Entry 18. It was fully permissible for the High Court to find out asto whether any Tribe named ‘Gond Gowari’ is in existence or not andwho are the true ‘Gond Gowari’ entitled for the benefit of the ScheduledTribes.

21. Shri Rohatgi submits that ‘Gond Gowari’ was a small hybridcaste by alliance of Gond and Gowari, in 1911 Gond Gowari werecompletely amalgamated with the Tribe Gowari. It is submitted that infact there is no Tribe of “Gond Gowari” and it is in fact Gowari whichwas included in the Constitution (Scheduled Tribes) Order, 1950. Hesubmits that for Gowari to recognise as Scheduled Tribes there is nonecessity of showing any affinity with Gond. He submits that by theScheduled Castes and Scheduled Tribes (Amendment) Act, 1976, theword including “Gond Gowari” as occurring in Entry 12 was substitutedby Entry 18 by deleting word Gond which clearly means that all Tribesmentioned in the Entry 18 are independent Tribes with having no affinitywith Gond. He submits that the State of Maharashtra right from 1967has been taking the stand that Gowari be included as separate categoryof Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950,the State cannot suddenly take a U-turn and start denying the claim ofGowari to be Scheduled Tribe. Shri Rohatgi submits that the High Courthas referred to a host of materials considered in the judgment for comingto the conclusion that Tribe Gond Gowari became extinct prior to 1911.The exercise undertaken by the High Court is in consonance with thelaw laid down by the Constitution Bench in B. Basavalingappa Vs.D. Munichinnappa and Ors., AIR 1965 SC 1269. He submits thatbefore the High Court it does not make any difference whether theclaim that Gond Gowari were extinct before 1911 was admitted ordisputed, even it is disputed, the High Court had to find out truth to clear A

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Athe confusion after looking into the evidence on record. He submits thatthe High Court has referred to the Census Reports and has rightly foundout that after 1911 in subsequent Censuses held that it was only Gowariwho were found present. Gond Gowari being surplusage the claim wasraised for substitution of Gond Gowari with Gowari. It is submitted thatit is the Gowari who were found present in Census after 1911 and itBwere Gowari who were entitled to be treated as Scheduled Tribes andGowari being not a sub-caste of Gond they were not required to proveany affinity with Gond and the Resolution dated 24.04.1985 of the Stateof Maharashtra requiring affinity to be proved was not in accordancewith law. Shri Rohatgi submits that it is actually Gowari who have beenCgiven certificate of Scheduled Tribes. He submits that there are nocompetitive claims of Gond Gowari, there being no Tribe of Gond Gowariin existence as of now.

22. Shri Rohatgi further submits that ratio of Constitution Benchin State of Maharashtra Vs. Milind and Ors. is not in accord with theDratio of earlier Constitution Bench in B. Basavlingappa. There beingconflict between the ratio of two Constitution Benches, the matter needsto be referred to a larger Constitution Bench for resolving the conflict.Shri Rohatgi lastly submits that after the judgment of Division Benchdated 14.08.2018, Scheduled Tribes’ certificates were issued on the basisof which admissions/employment have been undertaken by members ofEGowari community which benefit needs to be protected by this Court.

23. Ms. Bansuri Swaraj, appearing for the respondents submitsthat Gond Gowari community was short-lived and it got extinct completelyprior to the Census of 1911. There did not exist any Tribe named ‘GondGowari’ as on 29.10.1956, i.e., the date of its inclusion in Entry No.18 ofFthe Constitution (Scheduled Tribes) Order, 1950. It is submitted thatGowari community alone which was shown as ‘Gond Gowari’.Reliance has also been placed on book titled “Castes and Tribes of theCentral Provinces of India” by Russell and Hira Lal. It is submitted thatfirst Backward Classes Commission under the Chairmanship ofGKakasaheb Kalelkar had recommended Gowari under the Sub-group/Sub-tribes ‘Gond’ group, which was to be added with Gond, but bysome mistake instead of Gowari, Gond Gowari was included in theEntry in the Scheduled Castes and Scheduled Tribes Lists(Amendment) Bill, 1956. Although amendment was supposed to bemade as Gowari to be added with Gond but was erroneously made asHGond Gowari. It is submitted that in the year 1965, the Chief Minister of Maharashtra had discussed with the Advisory Committee and it wasrecommended that the Gowari Tribe be added as a separate Tribe bydeleting the Entry of Gond Gowari. The State of Maharashtra havingtaken a stand that Gowari be included as separate Entry in the ScheduledTribes, there is a legitimate expectation in the Gowari community. Afterthe judgment of the High Court, the Revenue Minister of the State hasmade a statement that High Court judgment shall be implemented whichstand has subsequently been changed.

24. Learned counsel for the parties have placed reliance on thevarious judgments of this Court which shall be referred to whileconsidering the submissions in detail.

25. Before we enter into the respective submissions of learnedcounsel for the parties, it is relevant to notice the relevant constitutionalprovisions as well as the Constitution (Scheduled Tribes) Order, 1950amended from time to time and other relevant statutory provisions.

26. Part XVI of the Constitution deals with “Special Provisionsrelating to certain classes”. Article 342 of the Constitution deals withScheduled Tribes, which is to the following effect:- “342. Scheduled Tribes—(1)The President may with respectto any State or Union territory, and where it is a State, afterconsultation with the Governor thereof, by public notification,specify the tribes or tribal communities or parts of or groups withintribes or tribal communities which shall for the purposes of thisConstitution be deemed to be Scheduled Tribes in relation to thatState or Union territory, as the case may be

(2) Parliament may by law include in or exclude from the list ofScheduled Tribes specified in a notification issued under clause(1) any tribe or tribal community or part of or group within anytribe or tribal community, but save as aforesaid a notification issuedunder the said clause shall not be varied by any subsequentnotification.”

27. Article 366(25) defines Scheduled Tribes in following words:- “366. Definitions.— In this Constitution, unless the contextotherwise requires, the following expressions have the meaningshereby respectively assigned to them, that is to say—

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A(25)”Scheduled Tribes” means such tribes or tribal communitiesor parts of or groups within such tribes or tribal communities asare deemed under Article 342 to be Scheduled Tribes for thepurposes of this Constitution; XXXXXXXXXXXXXXXX”

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28. In exercise of power under Article 342, the President hadissued 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 groupswithin, tribes or tribal communities, specified in Parts I to XIV ofCthe Schedule to this Order shall, in relation to the States to whichthose Parts respectively relate, be deemed. to be Scheduled Tribesso far as regards members thereof resident in the localitiesspecified in relation to them respectively in those Parts of thatSchedule.

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3. Any reference in the Schedule to this Order to a districtor other territorial division of a State shall be construed as areference to that district or other territorial division as existing onthe 26[th] January, 1950.”

29. The Schedule contains details of Scheduled Tribes withEreference to different States. Part III to the Schedule deals with theState of Bombay and Entry No.9 of Part III mentioned “9. Gond”. PartIV dealt with Madhya Pradesh where also Entry No.12 mentions “Gond[including Madia (Maria) and Mudia (Muria)]”. The Parliament passedan Act namely, The Scheduled Castes and Scheduled Tribes OrdersF(Amendment) Act, 1956 to provide for the inclusion in, and the exclusionfrom the lists of Scheduled Castes and Scheduled Tribes, of certain castesand tribes and matters connected therewith. AS per Section 4 of theAct, 1956, Constitution (Scheduled Tribes) Order, 1950 was amended inthe manner and to the extent as specified in Schedule III. In ScheduleIII, Entry No.9 was substituted by following Entry:-G

“9. Gond or Rajgond.”

30. Part IV which deals with Madhya Pradesh, Entry 12 wassubstituted by following entry:- “12 Gond, including- H

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AKuchaki Maria

Madia (Maria)

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MannewerBMoghya or Mogia or Manghya

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Wade Maria or Vade Maria”

31. It is to be noticed that amendment to the Scheduled Tribeswith respect to Madhya Pradesh was consequent to recommendationsby the report of the Backward Classes Commission also known asKalelkar Commission. With regard to Madhya Pradesh with regard toElist of Scheduled Tribes published in Constitution (Scheduled Tribes)Order, 1950 together with the revision suggested by the Backward ClassesCommission is included in volume II of the Report. Entry No.12 in theList of the Scheduled Tribes was with respect to Gond [including Madia(Maria) and Mudia (Muria)]. Backward Classes Commission suggestedFaddition of several sub-tribes of Gond with Gond. Column No.VI of theTable contains heading “Commission’s recommendation for inclusion”.Item No.10 in Column No.6 is to the following effect:- “10. Sub-Tribes of Gond : (to be added with Gond) Arakh or Arrakh AgariaG

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Wade Maria or Vade Maria”

32. The States Reorganisation Act, 1956 was enacted byBParliament to provide for the reorganisation of the States of India andfor matters connected therewith. Section 8 provided for formation of anew Bombay State. By virtue of Section 8(1)(c) following districts, whichthen existed in the State of Madhya Pradesh were included in the newBombay State, which is to the following effect:-

C“8. Formation of a new Bombay State. – (1) As from theappointed day, there shall be formed a new State to be known asthe State of Bombay comprising the following territories, namely:–

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(c) Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, BhandaraDand Chanda districts in the existing State of Madhya Pradesh; XXXXXXXXXXXX”

33. The above districts were earlier part of the State of MadhyaPradesh. Section 41 of the States Reorganisation Act provide formodification of the Scheduled Castes and Scheduled Tribes Orders withEregard to territorial changes and formation of new States under theprovisions of Part II. In exercise of power under Section 41 of the StatesReorganisation Act, Scheduled Castes and Scheduled Tribes Listsmodification under Order 1950 was issued dated 29.10.1956. Part IV ofthe Schedule dealt with Bombay. Schedule III contains the modificationFto the Constitution (Scheduled Tribes) Order, 1950. Part IV of theSchedule dealt with Bombay. Although, Entry No. 9 continued as Gondor Rajgond but with regard to certain Tehsils of Districts Amrawati,Chanda and Yeotmal, Entry No.12 alongwith Entry of Gond followingwas included:-G“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 YeotmalDistrict:- XXXXXXXXXXXX

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Arakh or ArrakhAgariaAsurBadi Maria or Bada MariaBhatolaBhimmaBhuta, Koilabhuta or Koilabhuti BharBisonhorn Maria Chota Maria Dandami Maria Dhuru or Dhurwa Dhoba Dhu1ia DorlaGaikiGatta or Gatti GaitaGond GowariHill MariaKandraKalangaKhatolaKoitarKoya”

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A34. We, thus, notice that after recommendation of BackwardClasses Commission for the State of Madhya Pradesh by virtue of Act,1956, with the tribe “Gond” “Gond Govari” was added as the ScheduledTribes by modification order dated 29.10.1956. With respect to State ofBombay in specific areas, with regard to entry of Gond as ScheduledTribe, several sub-tribes including “Gond Govari” was added as noticedBabove.

35. The Parliament enacted the Scheduled Castes and ScheduledTribes Orders (Amendment) Act, 1976 (Act No.108 of 1976) to providefor the inclusion in, and the exclusion from the list of Scheduled Castesand Scheduled Tribes, of certain castes and tribes, for the re-adjustmentCof representation of parliamentary and assembly constituencies in so faras such re-adjustment is necessitated by such inclusion or exclusion andfor matters connected therewith. The Statements of Objects and Reasonsof the Bill is relevant, which is to the following effect:- “STATEMENT OF OBJECTS AND REASONS

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“STATEMENT OF OBJECTS AND REASONS

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Under the Scheduled Castes and Scheduled Tribes Orderssome communities have been specified as Scheduled Castes oras Scheduled Tribes only in certain areas of the State concernedand not in respect of the whole State. This has been causingdifficulties to members of these communities in the areas whereEthey have not been so specified. The present Bill generally seeksto remove these area restrictions. However, in cases wherecontinuance of such restrictions were specifically recommendedby the Joint Committee on the Scheduled Castes and ScheduledTribes Orders (Amendment) Bill, 1967, no change is beingeffected. The Committee had also recommended exclusion ofFcertain communities from the lists of Scheduled Castes andScheduled Tribes. These exclusions are not being made at presentand such communities are being retained in the lists with the presentarea restrictions. Such of the communities in respect of which theJoint Committee had recommended exclusion on the ground thatGthey were not found in a State are, however, being excluded ifthere were no returns in respect of these communities in thecensuses of 1961 and 1971.

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2. The proposed amendments in the lists of ScheduledCastes and Scheduled Tribes may lead to an increase in the H

population of these Castes and Tribes and consequently in thenumber of reserved seats in the Lok Sabha and certain StateLegislative Assemblies. Provisions have therefore been made inthe Bill to empower the census authority to re-estimate thepopulation of the Scheduled Castes and the Scheduled Tribes andthe Election Commission to reallocate the reserved constituencies.”

36. The second Schedule of the Act, 1976 provides for substitutionin Constitution (Scheduled Tribes) Order, 1950 as indicated therein. Withregard to State of Maharashtra, which was formed, Part IX of the SecondSchedule, Entry No.18 deals with Scheduled Tribe “Gond”, which is tothe following effect:- “18. Gond Rajgond, Arakh, Arrakh, Agaria, Asur, Badi Maria, BadaMaria, 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”

37. Subsequent to above, the Parliament passed the ScheduledCastes and Scheduled Tribes Orders (Amendment) Act, 2002, thepreamble 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 withintribes or tribal communities, equivalent names or synonyms ofsuch tribes or communities, removal of area restrictions andbifurcation and clubbing of entries; imposition of area restrictionin respect of certain castes in the lists of Scheduled Castes, andthe exclusion of certain castes and tribes from the lists of ScheduledCastes and Scheduled Tribes, in relation to the States of AndhraPradesh, Arunachal Pradesh, Assam, Bihar, Goa, Gujarat,Himachal Pradesh, Jharkhand, Karnataka, Kerala, MadhyaPradesh, Maharashtra, Manipur, Mizoram, Orissa, Sikkim, TamilNadu, Tripura, Uttar Pradesh and West Bengal.”

38. The only amendment which was made with respect toSchedule pertaining to Maharashtra in Entry 18 was to the followingeffect:- A

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A“(i) in Part IX – Maharashtra—

(i) omit entry 12;

(ii) in entry 18 for “Gond Rajgond” substitute “Gond, Rajgond”;

(iii) omit entry 45;”

B39. The above amendment in the Scheduled Castes order indicatethe care which was taken by the legislature in describing the ScheduledTribes entries. By the above amendment in earlier Entry No.18 of “GondRajgond”, substitution was made by which now it is read as “Gond,Rajgond”.

C40. From the submissions of learned Counsel for the parties andmaterials on record, following questions arise for consideration: -

1) Whether the High Court in the writ petition giving rise tothese appeals could have entertained the claim of the caste“Gowari”, which is not included as Scheduled Tribe in theDConstitution (Scheduled Tribes) Order, 1950, that it bedeclared a Scheduled Tribe as “Gond Govari” which isincluded at Item No.18 of Constitution (Scheduled Tribes)Order, 1950 applicable in the State of Maharashtra andfurther to take evidence to adjudicate such claim?

E2)Whether the ratio of the judgment of the ConstitutionBench of this Court in B. Basavalingappa Vs. D.Munichinnappa, AIR 1965 SC 1269 permits the HighCourt to take evidence to find out whether ‘Gowari’ are‘Gond Gowari’ and is there any conflict in ratio of judgmentof Constitution Bench in B. Basavalingappa andFsubsequent Constitution Bench judgment of this Court inState of Maharashtra Vs. Milind, (2001) 1 SCC 4?

3) Whether the High Court could have entered into theadjudication of the issue that ‘Gond Gowari’ which is aScheduled Tribe mentioned in Scheduled Tribes Order,G1950, as amended up to date is no more in existence andwas extinct before 1911?

4) Whether the conclusion of the High Court in the impugnedjudgment that ‘Gond Gowari’ Tribe was extinct before 1911is supported on the materials which were on record beforeHthe High Court?

5) Whether caste ‘Gowari’ is same as ‘Gond Gowari’ includedat Item No.28, Entry 18 of the Constitution (ScheduledTribes) Order, 1950 and the High Court could have granteddeclaration to caste ‘Gowari’ as ‘Gond Gowari’ entitled forScheduled Tribe certificate?

6) Whether the High Court is correct in its view that ‘GondGowari’ shown as Item No.28 in Entry 18 of theConstitution (Scheduled Tribes) Order, 1950 is not asub-tribe of Gond, hence, its validity cannot be tested onthe basis of affinity test specified in Government Resolutiondated 24.04.1985?

Question Nos. 1 and 2

41. The Constitution of India contains ample provisions forfulfilment of the Constitutional aspirations of social justice to theScheduled Castes and Scheduled Tribes and to socially and educationallybackward classes of citizens. Articles 341 and 342 and Part XIV of theConstitution contains several provisions as special provisions relating tocertain classes. Article 342 of the Constitution envisages public notificationspecifying the tribes or tribal communities or parts of or groups withintribes or tribal communities which shall be for the purposes of thisConstitution be deemed to be Scheduled Tribes in relation to a Stateafter consultation with Governor thereof. Sub-clause (2) contains anotherimportant provision which provides that any inclusion or exclusion fromthe 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 theParliament to include and exclude a Scheduled Tribe in the list as specifiedin the sub-clause (1) of Article 342. There has been a series of judgmentsof this Court including Constitution Benches on Articles 341 and 342 aswell as entries in Scheduled Castes and Scheduled Tribes Order, 1950.This Court had occasion to consider as to what extent the Courts includingthe High court and this Court could interpret the entries in ScheduledCastes and Scheduled Tribes Orders. The High Court has heavily reliedon Constitution Bench judgment of this Court in B.BasavalingappaVs. D. Munichinnappa and Ors., AIR 1965 SC 1269.

42. We may first notice the above judgment. An Election Petitionwas filed challenging the election of respondent No.1 on the ground that A

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Arespondent No.1 not being member of any Scheduled Castes mentionedin Constitution (Scheduled Castes) Order, 1950 could not have contestedthe election from Scheduled Caste Constituency. The respondent claimedthat he belongs to a Scheduled Caste listed as Bhovi in the Order. theappellant’s case was that respondent No.1 was a Voddar by caste, whichwas not a Scheduled Caste. The Election Tribunal held that the casteBmentioned as Bhovi in the Scheduled Castes Order was a sub-casteamongst the Voddars and the entire Voddar caste not being included asScheduled Caste, the respondent No.1 was ineligible. The election wasset aside. On appeal, High Court held that Voddars caste as such wasnot included in the Order, but considering the facts and circumstances inCexistence at the time when the Order was passed in 1950, the Bhovicaste mentioned therein was no other than Voddar caste. The High Courtallowed the appeal, against which judgment, appeal was filed in thisCourt. The Constitution Bench of this Court speaking through Wanchoo,J. held that it is not open to make any modification in the Order byproducing evidence to show that though caste A alone is mentioned inDthe Order, caste B is also a part of caste A. The ratio of the judgment isclearly discernible from paragraph 6 of the judgment, which is to thefollowing effect:-“6. It may be accepted that it is not open to make anymodification in the Order by producing evidence to show (forEexample) 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 beincluded in caste A. It may also be accepted that wherever onecaste has another name it has been mentioned in brackets after itin the Order [see Aray (Mala) Dakkal (Dokkalwar) etc.].FTherefore, generally speaking it would not be open to any personto lead evidence to establish that caste B (in the example quotedabove) is part of caste A notified in the Order. Ordinarily thereforeit would not have been open in the present case to give evidencethat the Voddar caste was the same as the Bhovi caste specifiedin the Order for Voddar caste is not mentioned in brackets afterGthe Bhovi caste in the Order.”

43. After noticing the above preposition in paragraph 6, this Courtnoticed the peculiar circumstances of the case where in the MysoreState as it was before reorganisation of 1956, there was no caste knownas Bhovi at all. This Court, however, further emphasised that “if thereH

was a caste known as Bhovi as such in the Mysore State as it existedbefore 1956, evidence could not be given to prove that any other castewas included in the Bhovi caste”. In the above case, this Court, however,further held that when the undisputed fact is that there was no castespecifically known as Bhovi in the Mysore State and when one findsmentioned in the Order, one has to determine which was the caste whichwas meant. In paragraph 7 of the judgement, following has been laiddown:-

“7. But that in our opinion does not conclude the matter inthe peculiar circumstances of the present case. The difficult inthe present case arises from the fact (which was not disputedbefore the High Court) that in the Mysore State as it was beforethe re-organisation of 1956 there was no caste known as Bhovi atall. The Order refers to a Scheduled caste known as Bhovi in theMysore State as it was before 1956 and therefore it must beaccepted that there was some caste which the President intendedto 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 Bhoviin the order though there was no such caste at all in the MysoreState as it existed before 1956. But when it is not disputed thatthere was no caste specifically known as Bhovi in the MysoreState before 1956, the only course open to Courts to find outwhich 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 Stateas it existed before 1956, evidence could not be given to provethat any other caste was included in the Bhovi caste. But whenthe undisputed fact is that there was no caste specifically knownas Bhovi in the Mysore State as it existed before 1956 and onefinds a caste mentioned as Bhovi in the Order, one has to determinewhich was the caste which was meant by that word on its inclusionin the Order. It is this Peculiar circumstance, therefore, whichnecessitated the taking of evidence to determine which was thecaste which was meant by the word ‘Bhovi’ used in the Order,when no caste was specifically known as Bhovi in the MysoreState before the re-organisation of 1956.”

44. Shri Rohatgi, learned senior counsel appearing for the appellanthas placed much reliance on paragraph 7 of the judgment and has A

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Acontended that this Court approved the exercise undertaken by the HighCourt to find out which was the Bhovi caste, which was included in theConstitution (Scheduled Castes) Order, 1950, hence, an evidence wasrightly looked into by the High Court, which received approval by thisCourt. Shri Rohatgi further submits that although in the B.Basavalingappa’s case the factum that there was no caste in the MysoreBState before reorganisation known as Bhovi at all was not disputed butthe fact that whether it is disputed or not disputed shall not make anydifference, whenever the issue is raised that has been answered by theCourts looking into the evidence.

45. The observations made by this Court in paragraph 7 in noCmanner dilutes the ratio of the judgment as laid down in paragraph 6quoted above. This Court approved the High Court exercise of lookinginto the evidence to determine which was the caste which was meantby the word “Bhovi” in the Order in the peculiar circumstances of thecase where the fact was not disputed that there was no caste known asDBhovi in the Mysore State before 1956. In paragraph 7, these followingtwo observations made by this Court are in full accord with the ratio aslaid down in paragraph 6, they are:- “7. ………………………..It cannot be accepted that thePresident included the caste Bhovi in the order though there wasEno such caste at all in the Mysore State as it existed before 1956.……………………………. If there was a caste known as Bhovias such in the Mysore State as it existed before 1956, evidencecould not be given to prove that any other caste was included inthe Bhovi caste.………………………………”

F46. In the present case, the case of the respondent in the writpetition was categorical that Gond Gowari was a caste which was inexistence since before 25.09.1956. Even the High Court in the impugnedjudgment has said that caste Gond Gowari did not exist prior to 1956rather the High Court held that caste was there but it became extinctprior to 1911. Thus, the circumstances in which this Court in B.GBasavalingappa’s case approved the looking of the evidence werepeculiar to that case and has no application in the facts of the presentcase.

47. We may notice another Constitution Bench judgment in BhaiyaLal Vs. Harikishan Singh and Ors., AIR 1965 SC 1557, which wasHdelivered few months after judgment of B. Basavalingappa’s case, noted the ratio of judgment and reiterated that though the appellant wasnot a Scheduled Caste as enumerated in the Scheduled Castes Orderbut he belonged to another caste, which is sub-caste of Scheduled Caste,cannot be looked into. In the above case, Bhaiya Lal was elected fromreserved seat. Election was challenged on the ground that Bhaiya Lalbelonged to Dohar caste and was not a Chamar. Bhaiya Lal in hisnomination has declared that he was member of Chamar ScheduledCaste. Election Tribunal found against the elected candidate and setaside the election. The High Court dismissed the appeal. Bhaiya Lalquestioned 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 asub-caste of Chamar Scheduled Caste. This Court held that the claimthat Dohar caste is a sub-caste of Chamar caste cannot be entertained.in paragraph 8 following has been laid down:- “8. Incidentally, we may point out that the plea that the Doharcaste is a sub-caste of the Chamar caste cannot be entertained inthe present proceedings in view of the Constitution (ScheduledCastes) Order, 1950. This Order has been issued by the Presidentunder Article 341 of the Constitution. Article 341(1) provides thatthe 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 partsof or groups within castes, races, or tribes which shall for thepurposes of this Constitution be deemed to be Scheduled Castesin relation to that State or Union Territory, as the case may be.Sub-article (2) lays down that Parliament may by law include inor exclude from the list of Scheduled Castes specified in anotification issued under clause (1) any caste, race or tribe or partof or group within any caste, race or tribe, but save as aforesaid anotification issued under the said clause shall not be varied by anysubsequent notification. It is thus clear, that in order to determinewhether or not a particular caste is a scheduled caste within themeaning of Article 341, one has to look at the public notificationissued by the President in that behalf. In the present case, thenotification refers to Chamar, Jatav or Mochi, and so, in dealingwith the question in dispute between the parties, the enquiry whichthe Election Tribunal can hold is whether or not the appellant is aChamar, Jatav or Mochi. The plea that though the appellant is nota Chamar as such, he can claim the same status by reason of the A

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Afact that he belongs to the Dohar caste which is a sub-caste ofthe Chamar caste, cannot be accepted. It appears to us that anenquiry of this kind would not be permissible having regard to theprovisions contained in Article 341. In the case of B.Basavalingappa v. D. Munichinnappa this Court had occasionto consider a similar question. The question which arose forBdecision in that case was whether Respondent 1, though Voddarby caste, belonged to the scheduled caste of Bhovi mentioned inthe Order, and while holding that an enquiry into the said questionwas permissible, the Court has elaborately referred to the specialand unusual circumstances which justified the High Court in holdingCthat Voddar caste was the same as the Bhovi caste within themeaning of the Order; otherwise the normal rule would be:

“it may be accepted that it is not open to make any modificationin the Order by producing evidence to show, for example, thatthough caste A alone is mentioned in the Order, caste B is alsoDa part of caste A and, therefore, must be deemed to be includedin caste A.”

That is another reason why the plea made by the appellant thatthe Dohar caste is a sub-caste of the Chamar caste and as suchmust be deemed to be included in the Order, cannot be accepted.”

E48. In Bhaiya Lal’s case, the Constitution Bench reiterated theratio of B. Basavalingappa’s case in following words:- “it may be accepted that it is not open to make any modification inthe Order by producing evidence to show, for example, that thoughcaste A alone is mentioned in the Order, caste B is also a part ofFcaste A and, therefore, must be deemed to be included in casteA.”

49. We may notice few more judgments of this Court where thelaw on the subject was explained and reiterated. In Srish KumarChoudhury Vs. State of Tripura and Ors., 1990 Supp SCC 220,Gthis Court had occasion to consider Article 342. In the above case, theappellant had filed an application in a representative capacity before theHigh Court claiming that he belonged to Laskar community, which hasalways been treated in the erstwhile State of Tripura as a ScheduledTribe. The writ petition was dismissed by the High Court against whichthe appeal was filed. This Court referred to earlier two ConstitutionH

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 inparagraphs 8, 9 and 10. In paragraph 9, Three Judge Bench quoted theextract from Bhaiya Lal’s judgment and in paragraph 11, it was heldthat the ratio of judgment of Bhaiya Lal’s case supports the view ofearlier 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 inBhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 withreference 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, thePresident has been expressly authorised to limit the notificationto parts of or groups within the castes, races or tribes, and thatmust mean that after examining the educational and socialbackwardness of a caste, race or tribe, the President may wellcome to the conclusion that not the whole caste, race or tribebut parts of or groups within them should be specified. Similarly,the President can specify castes, races or tribes or parts thereofin relation not only to the entire State, but in relation to parts ofthe State where he is satisfied that the examination of the socialand educational backwardness of the race, caste or tribe justifiessuch specification. In fact, it is well known that before anotification is issued under Article 341(1), an elaborate enquiryis made and it is as a result of this enquiry that social justice issought to be done to the castes, races or tribes as may appearto be necessary, and in doing justice, it would obviously beexpedient not only to specify parts or groups of castes, racesor tribes, but to make the said specification by reference todifferent areas in the State.”

11. What we have extracted above clearly supports the view ofthe other Constitution Bench, namely, the list is intended to befinal.”

50. The Three Judge Bench reiterated that Courts cannot enterinto an enquiry to determine whether the three terms indicated in the A

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APresidential Order include Deshi Tripura which covers the Laskarcommunity. In paragraph 20, following was laid down:- “20. The two Constitution Bench judgments indicate that enquiryis contemplated before the Presidential Order is made but anyamendment to the Presidential Order can only be by legislation.BWe do not think we should assume jurisdiction and enter into anenquiry to determine whether the three terms indicated in thePresidential Order include Deshi Tripura which covers the Laskarcommunity;……………………………………”

This Court also reiterated that enquiry is contemplated before theCPresidential Order is made.

51. The next judgment to be noticed is Palghat Jilla ThandanSmudhaya Samrakshna Samithi and Anr. Vs. State of Kerala andAnr., (1994) 1 SCC 359. In the above case, a writ petition was filedclaiming that the petitioner belonged to Thandan community, therefore,Da Scheduled Caste certificate be issued. The writ petition was allowed,however, the petitioner was denied admission in M.B.B.S. course inseat reserved for Scheduled Caste on the ground that she was not aThandan. A Three Judge Bench of this Court after noticing the ratio ofearlier two Constitution Bench judgments has held that the Court couldnot assume the jurisdiction and order an enquiry to determine whetherEthe terms of the Presidential Order includes a particular community. Inparagraphs 17 and 18, following was laid down:- “17. We may usefully draw attention to the judgment of aBench of three learned Judges of this Court in Srish KumarChoudhury v. State of Tripura, 1990 Supp SCC 220. ThisFjudgment considered the Constitution Bench judgments inB. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269and Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 andcertain other judgments. It held that the two Constitution Benchjudgments indicated that any amendment to the Presidential OrdersGcould only be by legislation. The Court could not assume jurisdictionand order an enquiry to determine whether the terms of thePresidential Order included a particular community. A StateGovernment was entitled to initiate appropriate proposals formodification in cases where it was satisfied that modificationswere necessary and, if after appropriate enquiry, the authorities H

were satisfied that a modification was required, an amendmentcould be undertaken as provided by the Constitution.

18. These judgments leave no doubt that the ScheduledCastes Order has to be applied as it stands and no enquiry can beheld or evidence let in to determine whether or not some particularcommunity falls within it or outside it. No action to modify theplain effect of the Scheduled Castes Order, except as contemplatedby Article 341, is valid.”

52. A Two Judge Bench in Kumari Madhuri Patil and Anr. Vs.Addl. Commissioner, Tribal Development and Ors., (1994) 6 SCC241 had occasion to consider the Constitution (Scheduled Tribes) Order,1950 as applicable to State of Maharashtra. In Constitution (ScheduledTribes) Order, 1950, caste “Mahadeo Koli” was included. The appellantsclaimed that they were entitled to Scheduled Tribe certificate of MahadeoKoli whereas caste was shown in admission register as “Hindu Koli”.The Scheduled Caste certificate was refused. A writ petition was filedin the High Court, which was dismissed against which the matter cameto this Court. This Court held that Scheduled Caste notified was MahadeoKoli and the petitioners being Hindu Koli were not entitled for theScheduled Tribes certificate. In paragraph 9, following has been laiddown:- “9. …………………………………….It is common knowledgethat endeavour of States to fulfil constitutional mandate ofupliftment of Scheduled Castes and Scheduled Tribes by providingfor reservation of seats in educational institutions and forreservation of posts and appointments, are sought to be denied tothem by unscrupulous persons who come forward to obtain thebenefit of such reservations posing themselves as persons entitledto such status while in fact disentitled to such status. The case inhand is a clear instance of such pseudo-status. Kolis have beendeclared to be OBC in the State of Maharashtra being fishermen,in that their avocation is fishing and they live mainly in the coastalregion of Maharashtra. Mahadeo Kolis are hill tribes and it is nota sub-caste. Even prior to independence, the MaharashtraGovernment declared Mahadeo Koli to be criminal tribe as earlyas 29-5-1933 in Serial No. 15 in List II thereof. In 1942 Resolutionin Serial No. 15 in Schedule B of the Bombay resolution MahadeoKoli tribe was notified as a Scheduled Tribe. It was later amended AB

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Aas Serial No. 13. In the Presidential Scheduled Castes/ScheduledTribes Order, 1950, it was reiterated. A slight modification wasmade in that behalf by the Presidential Notification dated29-10-1956. In the 1976 Amendment Act, there is no substantialchange except removing the area restriction. Thus Mahadeo Koli,a Scheduled Tribe continued to be a Scheduled Tribe even afterBindependence. The Presidential Notification, 1950 also doesrecognise by public notification of their status as Scheduled Tribes.The assumption of the Division Bench of the Bombay High Courtin Subhash Ganpatrao Kabade case[1], that Mahadeo Koli wasrecognised for the first time in 1976 under Amendment Act, 1976,Cas Scheduled Tribe is not relatable to reality and an erroneousassumption made without any attempt to investigate the truth inthat behalf. Presidential declaration, subject to amendment byParliament being conclusive, no addition to it or declaration ofcastes/tribes or sub-castes/parts of or groups of tribes or tribalcommunities is permissible.”D

53. A Three Judge Bench in Nityanand Sharma and Anr. Vs.State of Bihar and Ors., (1996) 3 SCC 576 had also considered thesimilar question. The question which was up for consideration has beennoted in paragraph 2 of the judgment to the following effect:- E“2. Short but an important question of constitutional law of thepower of the court to declare a particular tribe to be ScheduledTribe under Scheduled Castes and Scheduled Tribes Order, 1950as amended by Scheduled Castes and Scheduled Tribes Orders(Amendment Act), 1976 (for short “the Act”) is the primaryquestion.”F

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54. The petitioner in the above case belonged to Lohar community.They claimed Scheduled Tribe certificate. The State resisted the claimthat Lohar in State of Bihar is recognised as Other Backward Class andnot Scheduled Tribe. The entry in the Scheduled Tribe Order mentionedLohara/Lohra. This Court held that the question which is up forGconsideration is no longer res integra and is covered by ratio of theConstitution Bench judgment in Bhaiya Lal and B. Basavalingappacase. In paragraphs 13 and 15, following was laid down:- “13. The question then is: Whether Lohars could be consideredby the Court as synonyms of Loharas or Lohras? This question is H

no longer res integra. In Bhaiyalal v. Harikishan Singh, AIR1965 SC 1557 a Constitution Bench of this Court had consideredin an election petition whether Dadar caste was a Scheduled Caste.It held that the President in specifying a caste, race or tribe hasexpressly been authorised to limit the notification to parts of orgroups within the caste, race or tribes. It must mean that afterexamining the social and educational backwardness of a caste,race or a tribe, the President may come to the conclusion that notthe whole caste, race or tribe, but parts of or groups within themshould be specified as Scheduled Caste or Scheduled Tribe. Theresult of the specification is conclusive. Notification issued underArticle 341(1), after an elaborate enquiry in consultation with theGovernor and reaching the conclusion specifying particular caste,race or tribe with reference to different areas in the State, isconclusive. The same view was reiterated in B. Basavalingappav. D. Munichinnappa, AIR 1965 SC 1269.

15. It is for Parliament to amend the law and the Schedule andinclude in and exclude from the Schedule, a tribe or tribalcommunity or part of or group within any tribe or tribal communityfor the State, District or region and its declaration is conclusive.The Court has no power to declare synonyms as equivalent to theTribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of theConstitution, “Scheduled Tribes” defined under Article 366(25)as substituted (sic) under the Act, and the Second Schedulethereunder are conclusive. Though evidence may be admissibleto a limited extent of finding out whether the community whichclaims the status as Scheduled Caste or Scheduled Tribe, was, infact, included in the Schedule concerned, the Court is devoid ofpower to include in or exclude from or substitute or declaresynonyms to be of a Scheduled Caste or Scheduled Tribe or partsthereof or group of such caste or tribe.”

55. Rejecting the claim of Lohar as Scheduled Tribe, followingwas 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 ScheduledTribe. It is only, as evidenced from the translated version, that thecommunity ‘Lohar’ came to be wrongly translated for the word AB

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‘Lohra’ or ‘Lohara’ and shown to have been included in the SecondSchedule, Part III, applicable to Bihar State. Mr. B.B. Singh,therefore, is right in placing before us the original version in Englishand the translated version.

20. Accordingly, we hold that Lohars are an Other BackwardBClass. They are not Scheduled Tribes and the Court cannot giveany declaration that Lohars are equivalent to Loharas or Lohrasor that they are entitled to the same status. Any contrary viewtaken by any Bench/Benches of Bihar High Court, is erroneous.It would appear that except some stray cases, there is a consistentview of that Court that Lohars are not Scheduled Tribes. TheyCare blacksmiths. We approve the said view laying down the correctlaw.”

56. Now, we come to a subsequent Constitution Bench judgmentof this Court in State of Maharashtra Vs. Milind and Ors., (2001) 1SCC 4. Before the Constitution Bench, two questions arose, which areDnoted 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 evidenceto decide or declare that any tribe or tribal community or part ofEor group within any tribe or tribal community is included in thegeneral name even though it is not specifically mentioned in theentry concerned in the Constitution (Scheduled Tribes) Order,1950?

(2) Whether “Halba-Koshti” caste is a sub-tribe within the meaningFof Entry 19 (Halba/Halbi) of the said Scheduled Tribes Orderrelating to the State of Maharashtra, even though it is notspecifically mentioned as such?”

57. Entry 19 of the Constitution (Scheduled Tribes) Order, 1950as applicable in the State of Maharashtra was Halba/Halbi. The claimwas raised by another caste Halba-Koshti that they are also entitled forGissue of Scheduled Tribe certificate. The caste certificate of therespondent was rejected by the Caste Scrutiny Committee against whichan appeal was filed, which was dismissed holding that respondent No.1belonged to Koshti and did not belong to Halba/Halbi Scheduled Tribe.Writ petition was filed by respondent No.1, which was allowed by theHHigh Court holding that it was permissible to enquire whether any sub- division of a tribe was a part and parcel of the tribe mentioned thereinand that ‘Halba-Koshti’ is a subdivision of main tribe ‘Halba’/’Halbi’ asper 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 quashedthe impugned orders inter alia holding that it was permissible toinquire whether any subdivision of a tribe was a part and parcelof the tribe mentioned therein and that “Halba-Koshti” is asubdivision of main tribe “Halba/Halbi” as per Entry 19 in theScheduled Tribes Order applicable to Maharashtra. Hence theState of Maharashtra has come up in appeal by special leave,questioning the validity and correctness of the order of the HighCourt allowing the writ petition of Respondent 1.”

58. This Court after noticing the constitutional provisions held thatit is not possible to say that State Governments or any other authority orcourts or tribunals are vested with any power to modify or vary theScheduled Tribes Orders. This Court also held that no enquiry ispermissible and no evidence can be let in for establishing that a particularcaste or part or group within tribes or tribe is included in PresidentialOrder if they are not expressly included. In paragraph 12, following hasbeen laid down:-

“12. ……………………………………….It appears that theobject of clause (1) of Articles 341 and 342 was to keep awaydisputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whethera particular caste or a tribe is Scheduled Caste or Scheduled Tribeas the case may be, within the meaning of the entries contained inthe Presidential Orders issued under clause (1) of Articles 341and 342, is to be determined looking to them as they are. Clause(2) of the said articles does not permit any one to seek modificationof the said orders by leading evidence that the caste/Tribe (A)alone is mentioned in the Order but caste/Tribe (B) is also a partof caste/Tribe (A) and as such caste/Tribe (B) should be deemedto be a Scheduled Caste/Scheduled Tribe as the case may be. Itis only Parliament that is competent to amend the Orders issuedunder Articles 341 and 342. As can be seen from the entries inthe schedules pertaining to each State whenever one caste/tribehas another name it is so mentioned in the brackets after it in the A

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schedules. In this view it serves no purpose to look at gazetteersor glossaries for establishing that a particular caste/tribe is aScheduled Caste/Scheduled Tribe for the purpose of Constitution,even though it is not specifically mentioned as such in thePresidential Orders. Orders once issued under clause (1) of thesaid articles, cannot be varied by subsequent order or notificationeven by the President except by law made by Parliament. Henceit is not possible to say that State Governments or any otherauthority or courts or Tribunals are vested with any power tomodify or vary the said Orders. If that be so, no inquiry ispermissible and no evidence can be let in for establishing that aparticular caste or part or group within tribes or tribe is included inPresidential Order if they are not expressly included in the Orders.Since any exercise or attempt to amend the Presidential Orderexcept as provided in clause (2) of Articles 341 and 342 would befutile, holding any inquiry or letting in any evidence in that regardis neither permissible nor useful.”

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59. The Constitution Bench reiterated that the power to includeor exclude, amend or alter the Presidential Order is expressly andexclusively conferred on and vested with the Parliament and Courtscannot and should not extend jurisdiction to deal with the question as towhether a particular caste or sub-caste or group or part of tribe is includedEin any one of the entries mentioned in the Presidential Order. Followingwas laid down in paragraph 15:- “15. Thus it is clear that States have no power to amendPresidential Orders. Consequently, a party in power or theGovernment of the day in a State is relieved from the pressure orburden of tinkering with the Presidential Orders either to gainpopularity or secure votes. Number of persons in order to gainadvantage in securing admissions in educational institutions andemployment in State services have been claiming as belonging toeither Scheduled Castes or Scheduled Tribes depriving genuineand needy persons belonging to Scheduled Castes and ScheduledTribes covered by the Presidential Orders, defeating andfrustrating to a large extent the very object of protectivediscrimination given to such people based on their educationaland social backwardness. Courts cannot and should not expandjurisdiction to deal with the question as to whether a particular F

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caste, sub-caste; a group or part of tribe or sub-tribe is included inany one of the entries mentioned in the Presidential Orders issuedunder Articles 341 and 342 particularly so when in clause (2) ofthe said article, it is expressly stated that the said Orders cannotbe amended or varied except by law made by Parliament. Thepower to include or exclude, amend or alter Presidential Order isexpressly and exclusively conferred on and vested with Parliamentand that too by making a law in that regard. The President hadthe benefit of consulting the States through Governors of Stateswhich had the means and machinery to find out and recommendas to whether a particular caste or tribe was to be included in thePresidential Order. If the said Orders are to be amended, it isParliament that is in a better position to know having the meansand machinery unlike courts as to why a particular caste or tribeis to be included or excluded by law to be made by Parliament.Allowing the State Governments or courts or other authorities orTribunals to hold inquiry as to whether a particular caste or tribeshould be considered as one included in the schedule of thePresidential Order, when it is not so specifically included, maylead to problems………………………………….”

60. It is further to be noticed that Constitution Bench in Milind’scase (supra) has noted the ratio of earlier two Constitution Benchjudgments in B. Basavalingappa’s case and Bhaiya Lal’s case and inparagraph 28 has reaffirmed the ration of above two Constitution Benchjudgments. In paragraph 28, following is laid down:- “28. Being in respectful agreement, we reaffirm the ratio of thetwo Constitution Bench judgments aforementioned and state inclear terms that no inquiry at all is permissible and no evidencecan be let in, to find out and decide that if any tribe or tribalcommunity or part of or group within any tribe or tribal communityis included within the scope and meaning of the entry concernedin the Presidential Order when it is not so expressly or specificallyincluded. Hence, we answer Question 1 in the negative.”

61. In view of the ratio of judgments of this Court as noticedabove, the conclusion is inescapable that the High Court could not haveentertained the claim or looked into the evidences to find out and decidethat tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which isincluded in the Constitution (Scheduled Tribes) Order, 1950. It is further AB

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Aclear that there is no conflict in the ratio of Constitution Bench judgmentsof this Court in B. Basavalingappa’s case and State of MaharashtraVs. Milind and Ors. (supra). The ratio of B. Basavalingappa’s caseas noted in paragraph 6 of the judgment and extracted above is reiteratedby subsequent two Constitution Bench judgments in Bhaiya Lal’s caseand Milind’s case. There being no conflict in the ratio of the aboveBThree Constitution Bench judgments, we do not find any substance insubmission of Shri Rohatgi that for resolving the conflict, the matterneed to be referred to a larger Constitution Bench. We, thus, answerquestion Nos.1 and 2 in following words:-

(i) The High Court in the writ petition giving rise to these appealsCcould not have entertained the claim of a caste “Gowari” thatit be declared a Scheduled Tribe as “Gond Gowari” includedat Entry No.18 of the Constitution (Scheduled Tribes) Order,1950 nor High Court could have taken evidence to adjudicatethe above claim.

D(ii) There is no conflict in the ratio of the judgment of ConstitutionBench of this Court in Basavalingappa’s case and Milind’scase.

QUESTION NOS. 3 AND 4

EBoth the above questions being inter-related are being takentogether.

62. The Scheduled Tribe “Gond Gowari” as existing in Item No.28of Entry 18 of Constitution (Scheduled Tribes) Order, 1950 applicable toState of Maharashtra is continuing in the List of Scheduled Tribes ofFBombay State (now State of Maharashtra) since 29.10.1956. To a largenumber of members of the “Gond Gowari” caste Scheduled Tribecertificates have been issued by the competent authority in the State ofMaharashtra from time to time. In Writ Petition No. 4779 of 2008(Adivasi Gond Govari (Gowari) Sewa Mandal through its Presidentvs. State of Maharashtra and others) the writ petitioner has prayedGfor quashing and setting aside the caste validity certificates issued in thename of respondent Nos. 4 to 19 as “Gond Gowari”, Scheduled Tribe.The fact that before the High Court there was a writ petition wherecaste certificates granted to 16 respondents of “Gond Gowari” weresought to be quashed clearly proved the existence of community “GondGowari”. Although there have been recommendations by the State ofH

Maharashtra earlier in the year 1967 and thereafter in the year 1979 toinclude the “Gowari” as Scheduled Tribe, the said recommendationswere never accepted by the Parliament since in spite of passing of severalAmendment Acts by the Parliament to the Constitution (ScheduledTribes) Order, 1950 Entry of “Gond Gowari” in the Scheduled Tribe wasnever deleted. A private bill to delete Entry of “Gond Gowari” andsubstitute it by Gowari was not passed by the Parliament and turneddown. The High Court has also referred to and relied on the book “Tribesand Castes of the Central Provinces of India by R.V. Russell and RaiBahadur Hira Lal wherein castes “Gond Gowari” and “Gowari” wereseparately dealt with as distinct castes. It is also on the record that theState of Maharashtra even though it had recommended vide letters dated26.03.1979 and 12.06.1979 to include Gowari in the list of ScheduledTribes but on 06.11.1981 State of Maharashtra wrote to Ministry ofHome Affairs, New Delhi where dealing with the subject of theScheduled Tribes in paragraph 3(iii) following was stated:

“3 (iii) Following tribes do not fulfill the criteria of S.Ts and henceState Government does not consider it necessary to include themin the list of S.Ts of this State and hence their inclusion is notrecommended:

1) Otari

2) Gowari

3) Dhangar

4) Mana”

63. Thus, the State Government recommended Gowari not to beincluded as they having not fulfilled criteria of Scheduled Tribe. It is tobe noted that in letter dated 26.03.1979 of the Government of Maharashtrato the Union of India although recommendation was made to includeGowari in Scheduled Tribe but there was no recommendation to delete“Gond Gowari” from the list of Scheduled Tribes. In letter dated26.03.1979 with regard to Gowari, following statement was made:

“III] GOWARI: The community is at present included in the listof Scheduled Tribes, as “Gond Gowari”. It has been representedto Government that Gowari community is not a sub-group of thetribe, Gond, but is is a separate tribe in itself. The State Governmenthad accordingly recommended to the Government of India to show AB

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Athe Gowari tribe separately. A copy of Chief Minister’s D.O. Letterdated 27.1.1967 is enclosed. The tribe Gowari may now be included,as a separate tribe. The Joint Committee on the Scheduled Castesand Scheduled Tribes Orders(Amendment) Bill 1967, hadrecommended the inclusion of the community as a separate tribefor Vidarbha area.”B

64. Thus, the recommendation to include Gowari as a separateScheduled Tribe was forwarded by the State of Maharashtra in the year1979 which was withdrawn in 1981 and after 1981 the State’s stand hasbeen that “Gond Gowari” and “Gowari” are two separate castes andGowari is not entitled for the benefit of Scheduled Tribe certificate. TheCGovernment of State of Maharashtra, Tribal Development Departmenthas issued G.R. dated 24.04.1985 where the State Government hasreferred to “Gond Gowari” as small sub-Tribe of Gond and non-ScheduledTribe caste was referred as Gowari. Along with the GovernmentResolution dated 24.04.1985 a comparative Chart was annexed of DScheduled Tribe and non-Scheduled Tribe community which was claimingbenefit. It is useful to extract comparative table which was part ofGovernment Resolution dated 24.04.1985 which is to the following effect:

This tribe is found Bhandara, There is no Ain Kurkheda Taluka, Chandrapur, traditional, Gadchiroli district. Gaadchiroli hereditary, People from Gond districts. language, tribe who do animal “Krishna, marital farming are called Ganga, Jamuna” relations by locals “Gond are the between Govari. In 1901, worshipping them. Gond their population in god/goddesses Govar do not BChandrapur district of this tribe. milk the was 3000. As they Kade-Kodevan cows. They belong to Gond is their main only do tribe, their language, God. They animal social life, customs, have caste farming. traditions, religious panchayat and Instead rituals are that of its chief is Govari tribe Gond. Clan, Family called do the Cgod/goddess, “Gondya”. production surnames and other They do not of milk. Due is same as that of marry in the to the Gond same clan. similarity of Clans such as name of Tohar, “Gavari” Ambadare, word, people Kohachya, of “Govari, Ravat, Sakhena, Gavari” DThakare, obtain the Sonavane. Scheduled tribe certificate to take the benefits of the tribe. E

65. The above materials which were on the record before theHigh Court as well as continuance of “Gond Gowari” as ScheduledTribe in the Constitution (Scheduled Tribes) Order, 1950 for the lastmore than 60 years, it was not open for the High Court to proceed intothe inquiry as to whether Scheduled Tribe “Gond Gowari” is not inexistence.

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“Therefore, the questions involved in all these cases arethreefold as under:

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(1) Is it permissible for this Court to hold that it is the Gowaricommunity alone which is meant by 28[th] Item “Gond Gowari” inthe cluster of tribes in Entry No. 18 in the Constitution (ScheduledTribes) Order?, H

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(2) Whether there existed any tribe as “Gond Gowari” ason 29-10-1956, i.e. the date of its inclusion as 28[th] Item in EntryNo. 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 asB28[th] Item in Entry No.18 of the said Order?”

67. The High Court referring to this Court’s judgment inB. Basavalingappa proceeded to enter into the material produced bythe respondents to the writ petition as to whether “Gond Gowari” werenot in existence prior to their inclusion in Constitution (Scheduled Tribes)COrder, 1950. We have already held that the ratio of B. Basavalingappajudgment did not permit the High Court to enter into the issue as towhether a Tribe which is included in the Constitution (Scheduled Tribes)Order, 1950 did not exist. The High Court proceeded to answer to questionNos. 2 and 3 as noted above in paragraphs 34 to 57.

D68. Now, we proceed to consider the reasons given by the HighCourt in coming to the conclusion that Tribe “Gond Gowari” becameextinct prior to 1911. The High Court in paragraphs 41 to 43 of thejudgment has noticed the Census of India 1891. The High Court itself inthe aforesaid paragraphs have noted that Census of 1891 separate figureswere given of “Gowari” and “Gond Gowari”. In paragraph 43 followingEobservations 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 inthe Table XIII in the Census Report of 1891. The strength ofFGowaris and “Gond Gowari”s in the said Census was shown inNagpur as 13,491 and 11, in Wardha as 10,397 and 60, in Chanda11,217 and 19, in Bhandara 49212 and 335 respectively in the partof C.P. and Berar.”

69. The High Court has also noticed the Census of 1901 andGnoticed that in Nagpur Division the total population of “Gowari” and“Gond Gowari” was mentioned. Gowari was mentioned as 91,632 andwhereas “Gond Gowari”s were mentioned in five Districts of NagpurDivision as 2,553. The High Court then proceeded to examine the Censusof 1911 and it noticed that earlier classification of caste according totheir social precedents was changed reverting back to the past classH

classification of 1891 caste in according to traditional occupations, outof 37 main occupational groups, group IV was of Forest and Hill Tribesand Group V was of Graziers and Dairymen. The High Court noticedthat in Census of 1911 Group V in Central Provinces mentioned Gowarias 157,580 but there was no mention of “Gond Gowari”. Similarly, Censusof 1921 of Group V of Graziers and Dairymen was noticed where Gowariwas mentioned as 155,902. After noticing the aforesaid facts from Censusthe High Court recorded its conclusion in paragraph 57 to the followingeffect:

“57. In our view, the tribe “Gond Gowari”, which was asmall hybrid caste formed by an alliance of Gond and Gowariswas completely extinct before 1911 Census and no trace of itwas found either in the Maratha country of the C.P. and Berar orin the State of Madhya Pradesh. We, therefore, hold that theredid 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 theConstitution (Scheduled Tribes) Order in relation to the State ofMaharashtra and it was Gowari community alone shown as “GondGowari”. We, therefore, answer the question Nos. (2) and (3)accordingly.”

70. The High Court itself has in its judgment noticed and foundthe mention of “Gond Gowari” in Census of 1891 and 1901. The substantialfigures of “Gond Gowari” in the above two Censuses in Nagpur Divisionwere noticed. The High Court itself having noticed that the basis ofCensus in 1911 was changed, classification was made on the basis oftraditional occupation in which group IV was of Forest and Hill Tribesand Group V was of Graziers and Dairymen, the figures of 1911, 1921and 1931 have been noticed where in Group V Graziers and Dairymen,there was mention of Gowari. Mere fact that in Censuses of 1911, 1921and 1931 figures were given only of Group V, i.e., Graziers and Dairymenand there was no mention of “Gond Gowari” cannot lead to conclusionthat “Gond Gowari” have become extinct before 1911. A ScheduledTribe which admittedly was in existence and had a distinct identity shallnot be treated to have become extinct merely because the basis ofCensus has been changed in the subsequent years. The benefit given toa Scheduled Tribe cannot be taken away on the basis of figures given inCensus operation only. There have been amendments in Constitution(Scheduled Tribes) Order, 1950 from time to time. Several Tribes were AB

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Adeleted from the list by the Act of Parliament and several new Tribeswere included. There had been recommendations by the Joint Committeeof Parliament for exclusion of the Tribes which were excluded if therewas no return in respect of those communities in Censuses of 1961 and1971. We may refer to Statement of Objects and Reasons of TheScheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1976Bwhich has been stated:

“.....The Committee had also recommended exclusion of certaincommunities from the lists of Scheduled Castes and ScheduledTribes. These exclusions are not being made at present and suchcommunities are being retained in the lists with the present areaCrestrictions. Such of the communities in respect of which the JointCommittee had recommended exclusion on the ground that therewere no returns in respect of these communities in the censusesof 1961 and 1971.”

71. The above clearly indicates that those Scheduled Tribes andDSchedules Castes were excluded if only there was no return in respectof Census of 1961 and 1971. We, thus, are of the view that the wholebasis of judgment of the High Court that Tribe “Gond Gowari” wasextinct prior to 1911 Census and in subsequent Censuses 1911, 1921 and1931 they were not shown in Group V is completely flawed. The inclusionEof sub-Tribe as “Gond Gowari” in the Constitution (Scheduled Tribes)Order, 1950 was on 29.10.1956 when sub-Tribe “Gond Gowari” wasincluded in the Scheduled Tribe list it has to be presumed that the saidinclusion was after consultation with the State and after considering therelevant materials. The High Court could not have questioned the inclusionof the Scheduled Tribe “Gond Gowari” in the Constitution (ScheduledFTribes) Order, 1950 on the basis of reasoning as adopted by the HighCourt. The High Court has referred to and relied on the book “Tribesand Castes of the Central Provinces of India” by R.V. Russell and RaiBahadur Hira Lal in which book in Volume III community Gond, “GondGowari” and Gowari were all separately dealt with, describing “GondGGowari” in Volume III Russell states:

“Gond-Gowari.—A small hybrid caste formed from alliancesbetween Gonds and Gowaris or herdsmen of the Maratha country.Though they must now be considered as a distinct caste, beingimpure and thus ranking lower than either the Gonds or Gowaris,Hthey are still often identified with either of them. In 1901 only

3000 were returned, principally from the Nagpur and ChandaDistricts. In 1911 they were amalgamated with the Gowaris, andthis view may be accepted as their origin is the same. The Gowarissay that the Gond-Gowaris are the descendants of one of twobrothers who accidentally ate the flesh of a cow. Both the Gondsand Gowaris frequent the jungles for long periods together, and itis natural that intimacies should spring up between the youth ofeither sex. And the progeny of these irregular connections hasformed a separate caste, looked down upon by both its progenitors.The Gond-Gowaris have no subcastes, and for purposes ofmarriages are divided into exogamous septs, all bearing Gondnames. Like the Gonds, the caste is also split into two divisions,worshipping six and seven gods respectively, and members ofsepts worshipping the same number of gods must not marry witheach 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 fromgai or gao, the cow, and means a cowherd. The Gowaris numberedmore than 150,000 persons in 1911, of whom nearly 120,000belonged to the Nagpur division and nearly 30,000 to Berar. Inlocalities where the Gowaris predominate, Ahirs or Gaolis, theregular herdsman caste,are found only in small numbers. Thehonorific title of the Gowaris is Dhare, which is said to mean‘One who keeps cattle.’ The Gowaris rank distinctly below theAhirs or Gaolis.”

73. In the same Volume while describing the sub-Caste of Gowarifollowing description is given:

“The Gowaris have three divisions, the Gai Gowari, Inga, andMaria or “Gond Gowari”. The Gai or cow Gowaris are the highestand probably have more Gaoli blood in them. The Inga and Mariaor “Gond Gowari”s are more directly derived from the Gonds.Maria is the name given to a large section of the Gond tribe inChanda. Both the other two subcastes will take cooked food fromthe Gai Gowaris and the “Gond Gowari”s from the Inga, but theInga subcaste will not take it from the Gond, nor the Gai Gowarisfrom either of the other two. The “Gond Gowari”s have beentreated as a distinct caste and a separate article is given on them, AB

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Abut at the census Mr. Marten has amalgamated them with theGowaris. This is probably more correct, as they are locally held tobe a branch of the caste. But their customs differ in some pointsfrom those of the other Gowaris. They will admit outsiders fromany respectable caste and worship the Gond gods, [115] and thereseems no harm, therefore, in allowing the separate article on themBto remain.”

74. In the above passage it has been categorically stated that“Gond Gowari” has been treated as a distinct caste and in the Censusthey have been amalgamated with Gowari. The account given by Russelldoes not lead to any conclusion that “Gond Gowari” were extinct beforeC1911.

75. It is also relevant to note that it was after the report of BackwardClasses Commission (1955), where recommendation was made to includeGowari as sub-Tribe of Gond for the State of Madhya Pradesh,consequently by Scheduled Castes and Scheduled Tribes OrdersD(Amendment) Act, 1956 in State of Madhya Pradesh “Gond Gowari”was added in Entry 12 and after re-organisation of the State, in Districtswhich came into State of Bombay, “Gond Gowari” was added byScheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956dated 29.10.1956 “Gond Gowari” was added. There have been consciousEaddition 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 acceptedthat the Parliament included Tribe which had become extinct before1911.F76. The High Court in paragraph 68 of the judgment has itselfreferred to Report of Research Officers dated 12.05.2006. On the basisof the decision taken in respect Gowari community under theChairmanship of Hon’ble Chief Minister on 29.05.2005 TribalDevelopment Department was entrusted to ascertain the facts. TheResearch Officers on 12.05.2006 personally visited the areas in whichGmaximum population of Gowari caste and “Gond Gowari” caste werefound in different villages of District Gadchiroli. It shall be useful torefer to the paragraph 68 of the judgment of the High Court which is tothe following effect:

“68. After going through the report dated 12-5-2006 (wronglyHmentioned as ’18-5-2006'), we find that the Research Officers visited the areas. The Committee of the Research Officersconducted search of revenue and school records of certainclaimants. It is the finding of the said Committee that uponinspection of P-I Register prior to 1950 in the Taluka Office ofLand Records at Kurkheda, no evidence is found of the entry“Gond Gowari”, but the evidence is of the entries of Gowari orGowara. The Committee also inspected the school records of theperiod prior to 1950 from the Zilla Parishad Primary School, whichincluded the school admission register and the affidavits. It foundone entry of Gowari (Gond) made on 1-7-1955 and rest of theentries are of Gowara or Gowari, which are also found in the ZillaParishad Primary Schools at Ramgad, Yenglekheda, Saletola. TheResearch Officers further record the finding that upon oralinterviews of the villagers, it is found that “Gond Gowari” tribe isa sub-tribe of Gond and their cultural traits and customs are foundsimilar to those of Gond tribe. It further states that when theinformation about Gowari tribe is collected, it was found to be anindependent tribe, having no similarity in cultural traits and customswith Gonds or “Gond Gowari”s. The Committee has tried to laydown 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 thatthe Research Officers conducted research and has also found Entry of“Gond Gowari” made on 01.07.1955. Thus, the Research Officers before29.10.1956 found “Gond Gowari” hence the above evidence which wasrelied by the High Court itself proved that “Gond Gowari” Tribe was inexistence and found personally by the Research Officers. Although inparagraph 68 the above facts were noticed by the High Court but inparagraph 74 in the heading: ADJUDICATION BY US in sub-para(3) the High Court states:

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

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A78. The conclusion of the High Court that Research Officers didnot find any Entry as “Gond Gowari” is factually incorrect and contraryto what was found in paragraph 68 as noted above.

79. We have already noted above the Government Resolutiondated 24.4.1985 issued by the Tribal Development Department of theBState, the difference between “Gond” and “Gond Gowari”, the differencein the character and customs of Scheduled Tribe community of “GondGowari” and community of Gowari as extracted above. The GovernmentResolution was issued after study by the State Government, the HighCourt although has noticed above Resolution in paragraph 70 of thejudgment but has given no reason as to why differentiation in two TribesCis to be discarded.

80. There is one more reason due to which the conclusion of theHigh Court that Scheduled Tribe “Gond Gowari” was extinct before1911 has to be flawed. The reason is that in Writ Petition No.4779 of2008 filed by Advasis “Gond Gowari” a prayer was made to quash theDScheduled Tribe certificates to “Gond Gowari” granted to respondentNos. 4 to 19. The High Court by passing order has called for certificatesof “Gond Gowari” which are dealt with by the High Court in paragraph77 to 83. In paragraph 77 following is the discussion by the High Court:

“77. .......The record shows that 22 claimants produced the extractsEof P-I Register maintained by the Taluka Land RecordsDepartments showing the caste of their forefathers as “GondGowari” prior to 1950. Except this, none other claimants out of136, produced any record of the period prior to the year 1950,evidencing their caste/tribe as “Gond Gowari”, but the documentsFproduced by them indicate their caste/tribe as Gond, Gowara orGowari. If the documents produced by all such 136 claimantsprior to 1950 and subsequent to 1950 are taken into consideration,the same indicate that 39 claimants produced the documentsindicating their tribe as “Gond Gowari”; 53 claimants producedthe documents indicating their tribe as Gowari; 29 claimantsGproduced the documents showing their tribe as Gowara; and 9claimants produced the documents showing their tribe as Gond.This position is also admitted and demonstrated in the replyfiled by the Committee. ”

81. The High Court further in paragraph 83 after perusing theHrecords of the Committee found 39 claimants produced the documents

which are in the nature of entries in P-I revenue record pertaining to theperiod 1922-1923. When before the High Court Scheduled Tribecertificates of “Gond Gowari” were filed in large number and therewere documents to support by the revenue entries some of which areprior to 1950 and which certificates were sought to be quashed in thewrit petition, the existence of Scheduled Tribe “Gond Gowari” was verymuch found. The Caste Scrutiny Committee having validated the saidcertificates it was not open for the High Court to say that ScheduledTribe “Gond Gowari” became extinct prior to 1911. The host of theevidence which was before the High Court including the ResearchOfficers’ Report dated 12.05.2006 and Scheduled Tribe certificates ofthe candidates who were “Gond Gowari” it was not open for the HighCourt to come to the conclusion that Scheduled Tribe “Gond Gowari”was extinct prior to 1911. The High Court summoned all the certificatesand there was no finding that certificates were fake or persons whowere given certificates are non-existent. The High Court erred in comingto the conclusion that “Gond Gowari” Tribe was extinct prior to 1911.We, thus, conclude that even on the basis of materials which were broughtbefore the High Court no conclusion could have been drawn that “GondGowari” Tribe was extinct prior to 1911.

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

The High Court could not have entered into the issue that“Gond Gowari” which was Scheduled Tribe mentioned inConstitution (Scheduled Tribes) Order, 1950 as amended upto 1976is no more in existence and became extinct before 1911.

ANSWER NO. 4

The conclusion of the High Court in the impugned judgmentthat “Gond Gowari” Tribe had been extinct before 1911 is notsupported by the materials which were on record before the HighCourt.

QUESTION NO. 5 & 6

Both the questions being interconnected are taken together.

83. The caste ‘Gowari’ and ‘Gond Gowari’ are two distinct andseparate castes. We have extracted the description of ‘Gowari’ and‘Gond Gowari’ given by Russell and Hiralal in the celebrated book, ‘The ABC

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ATribes and Castes of Central Provinces of India’. Russel and Hiralalhave separately dealt with ‘Gowari’ and ‘Gond Gowari’ and havecategorically stated that ‘Gond Gowari’ have been treated as distinctcastes from ‘Gowari’. We may also refer to the book published byAnthropological Survey of India, People of India, National Series VolumeIII on “The Scheduled Tribes’, where ‘Gond Gowari’ have been describedBin following words: - “GOND, GOWARI They are a community of cattle herders whohave been referred to by Russell and Hiralal (1916) as the Gond-Gowari and described as a small hybrid caste formed by an alliancebetween the Gonds and Gowaris. They have been enlisted asCGowari, a subgroup of the Gond in the Government of India listfor scheduled tribes. Our findings, however, reveal that they are adiscrete community and not a subgroup of any other tribe. Theyare distributed in the Bhandara, Amravati and Garhchiroli districtsof Maharashtra and in the Balaghat and Sioni districts of MadhyaDPradesh. Marathi is spoken for both inter-and intra-groupcommunication. The Devanagari script is used. The Gowari areshort and medium-statured people with a dark complexion. Themain diet is rice, jowar and wheat, local pulses and seasonalvegetables. They are non-vegetarians but do not eat beef.”

E84. The ‘Gowari’ which is another backward community havenot been included in the list of Scheduled Tribes in the above book.

85. We have already referred to the Enquiry Report by the TribalDevelopment Department dated 12.05.2006. The Enquiry Report statesfollowing: -F“With connection of knowing the culture, customs and traditionsof Gowari caste and Gowari Tribe, visits were made to aforesaidvillages and during these visits village information sheets weregiven to villagers to be filled by them; also discussions made withthem and their statements were recorded. Also information wasGgathered from the rest of the villagers who did not belong to eitherof these two communities about their knowledge of these twocommunities. From this information it has transpired that GondGowari tribe is a sub-tribe of Gond Tribe and that there is traditionalintermixing of food and marital ties (roti-beti relationship) betweenthese communities and there are common cultural customs andH

traditions between them. However, having collected the informationabout Gowari Caste it has transpired that it has a separate existenceand its culture, customs and traditions do not match with culturecustoms and traditions of Gond or Gond Gowari Tribe which aretotally different.”

86. We have further noticed the Census of 1891 and 1901 whichhave been referred by the High Court. The population of ‘Gowari’ hasbeen shown separately from the population of ‘Gond Gowari’. We havealso noticed the ratio of the Constitution Bench judgment of this Court inBasavalingappa and Bhaiya lal as well as Milind. The High Courtcould not have undertaken the enquiry to declare the caste which is notincluded in the Scheduled Tribes Order, 1950 as a Scheduled Tribe. TheHigh Court could not have granted a declaration that the caste ‘Gowari’is ‘Gond Gowari’ which is referred to in Item 28 of Entry 18 ofConstitutional Scheduled Tribes Order, 1950 amended as on date.

87. The High Court’s view that ‘Gond Gowari’ is not a sub-tribeof ‘Gond’, hence, its validity cannot be tested on the basis of the affinitytest specified in the Government Order dated 24.04.1985 is also notcorrect. The report of the first Backward Commission (1955) by whichrecommendation was made to add ‘Gowari’ as a sub-tribe of ‘Gond’was on the basis of study and research by the Backward Commissionwhich cannot be brushed aside.

88. We have also noticed the authoritative books on Tribes inCentral India that ‘Gond Gowari’ is a sub-tribe of ‘Gond’. In theGovernment Resolution dated 29.04.1985 comparative chart was annexedwhere general information regarding Scheduled Tribes and non-ScheduledTribes i.e. ‘Gond Gowari’ and ‘Gowari’ have been given. The GovernmentResolution also mentioned that ‘Gond Gowari’ is also a small sub-tribeof ‘Gond’ tribe.

89. Shri Rohtagi submits that it has been held by this Court thatwith regard to entries of Scheduled Tribes in Entry 18, all entries betreated to be separate caste and it is not necessary to prove any affinitywith ‘Gond’. He submits that in the Entry 18, the word “including” wasdeleted by Scheduled Caste and Scheduled Tribes Order AmendmentAct, 1976, the effect of which was that all entries of caste in Entry 18became independent to ‘Gond’ and no affinity is to be proved by anycommunity from ‘Gond’. He submits that ‘Gowari’ to claim the benefit A

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Aof the Scheduled Tribe need not prove any affinity with ‘Gond’. Hesubmits that the High Court has rightly undertaked the exercise to ignorea non-existent tribe and to extend the benefit of the Scheduled Tribe.Shri Rohtagi has placed reliance on judgment of this Court in State ofMaharashtra versus Mana Adim Jamat Mandal, (2006) 4 SCC98. In the above case, two questions were raised which have beenBnoticed in the paragraph 1 of the judgment which is to the followingeffect: - “1. What appears to be a perpetual controversy with regard tothe Scheduled Tribe status has again engaged the attention of thisCourt for a considerable time. Two questions are raised beforeCus:

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

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

90. The caste ‘Mana’ was also one of the castes which wasEincluded in the Entry 18. By the Government Resolution dated 24.04.1985,it was directed that ‘Mana’ community be not treated as ScheduledTribe unless they establish relationship or affinity with ‘Gond’ whichGovernment Resolution was also under challenge in the above case.

F91. This Court in the above judgment noticed the deletion of word“including” in Entry 18 and came to the conclusion that Mana is not asub-tribe of ‘Gond’. Following was laid down in paragraph 30: - “30. The common pattern found in most of the group entries isthat there is a punctuation mark comma (,) between one entryand another entry in the group signifying that each one of them isGdeemed to be a separate Scheduled Tribe by itself. In the presentcase, Entry 18 of the Schedule clearly signifies that each of thetribes mentioned therein is deemed to be a separate tribe by itselfand not a sub-tribe of “Gond”. “Gond” is a Schedule Tribe, it isnot disputed. As already noticed that “Gond” including Arakh orHArrakh, etc. found in Entry 12 of the Amendment Act 63 of 1956

has been done away with by the Amendment Act of 1976. InEntry 18 of the Second Schedule of the Amendment Act of 1976the word “including” was deliberately omitted, which signifies thateach one of the tribes specified in Entry 18 is deemed to be aseparate 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 regardto 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’ hasno such indication and insofar as ‘Gond Gowari’ is concerned we areclear in our view that ‘Gond Gowari’ is a community which has affinitywith ‘Gond’ and is sub-tribe of ‘Gond’. The entry of ‘Gond Gowari’ inScheduled Tribes Order 1950 was as a sub-tribe of ‘Gond’ which isclear from a report of the Backward Classes Commission, 1955. Whenthe inclusion of the entry ‘Gond Gowari’ was as (sub-tribe of Gond), itsaffinity with ‘Gond’ cannot be ignored on any basis.

93. The judgment of this Court in State of Maharashtra versusMana Adim Jamat Mandal (Supra), cannot be read as an authority tohold that ‘Gond Gowari’ has no affinity with ‘Gond’. The judgment ofthis Court in State of Maharashtra versus Mana Adim Jamat Mandal(supra) is solely based on deletion of word “including” in Entry 18. Forthe purpose of this case, we need not delve any further as to what is theintendment of Parliament in deleting the word “including” and by deletionof word “including”, all tribes included in common group i.e. Entry 18shall be treated separate and has nothing to do with ‘Gond’.

94. We entertain our own doubts about the correctness of theratio of judgment in the State of Maharashtra versus Mana AdimJamat Mandal with regard to a group entry. As per Article 342(1),tribes or tribal communities or parts or groups within tribes or tribalcommunities shall for the purposes of the Constitution be deemed to beScheduled Tribes. There has to be some purposes for joining number oftribes together in one entry, but as observed above in case with regard to‘Gond Gowari’ the affinity is more than apparent with ‘Gond’ and thejudgment of this Court in State of Maharashtra versus Mana AdimJamat 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 AB

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Abe established with Gond by the tribe ‘Gond Gowari’. We thus do notfind any infirmity in Government Resolution dated 24.04.2984 insofar asScheduled Tribe ‘Gond Gowari’ is concerned.

95. In view of the foregoing discussion we answer question No.5and 6 in following manner: - B

The caste ‘Gowari’ is not the same as ‘Gond Gowari’. TheHigh Court could not have granted declaration of caste ‘Gowari’as ‘Gond Gowari’.

ANSWER NO. 6C

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 castecertificate to ‘Gond Gowari’ has to be tested on the basis ofDaffinity test as specified in the Government Resolution dated24.04.1985.

96. In view of the foregoing discussion, none of the reasons givenby the High Court in paragraph 74 of the judgment are sustainable tohold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of ‘GondGowari’. The entire basis of the judgment of the High Court that tribeE‘Gond Gowari’ was completely extinct before 1911 having been foundto be flawed, the entire basis of judgment is knocked out.

97. Much emphasis has been given by the learned counsel for therespondents that the State Government having recommended in 1967and 1979 to include ‘Gowari’ in the list of Scheduled Tribes, it could notFhave changed its view subsequently. One of the reasons given by theHigh Court in paragraph 74(2) is as follows: - “74(2). We accept the view taken by the Central and the StateGovernment that - (a) Gowari community is included in theScheduled Tribes Order of the State as ‘Gond Gowari’ and it isGwrongly projected as a sub-tribe of Gond, (b) Gowari is anindependent tribe and not a sub-tribe of Gond, and (c) it is theGowari community which will have to be issued the certificate asGond Gowari.”

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98. When the State has expressly after 1979 has written to theGovernment of India on 06.11.1981 that ‘Gowari’ community does notfulfill the criteria of Scheduled Tribe and thereafter after 1984, severalstudies were conducted by Tribal department in State of Maharashtraincluding report dated 12.05.2006 which reaffirms that ‘Gond Gowari’and ‘Gowari’ are distinct community and ‘Gowari’ is not Scheduled Tribe,there was no error in taking stand before the High Court in the writpetition that ‘Gowari’ are not entitled for Scheduled Tribe Certificate.We fail to understand as to how the High Court has observed that itaccepts 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 reportdated 29.10.2020 submitted by Tata Institute of Social Sciences, Mumbaion “Socio Anthropological study of ‘Gowari’ community of Maharashtra”in which report, the conclusion has been recorded that there are majordifferences between ‘Gond Gowari’ and ‘Gowari’. It is relevant to noticethat the High Court has noticed the decision of the State Government toentrust the study to Tata Institute of Social Sciences which facts havebeen noticed in paragraph 86 of the judgment. Although the report dated29.10.2020 which has been brought on the record do reaffirms the standtaken by the State that both the communities are distinct and differentand ‘Gowari’ are not Scheduled Tribe but we need not base our judgmenton such report benefit of which report was not available to the HighCourt while deciding the writ petition.

100. Now, we come to the last submission of Shri Rohtagi. ShriRohtagi submits that Scheduled Tribe Certificate to the members of‘Gowari’ community was granted after the judgment of the High Courtdated 14.08.2018, on the basis of which certificates large number ofstudents have taken admission in different educational institutions takingbenefit of Scheduled Tribes as well as employment at various places asScheduled Tribes candidates which need to be protected by this Court.After the declaration granted by the High Court, the authorities proceededto grant Scheduled Tribe certificate to the ‘Gowari’ community and it istrue that on strength of such Scheduled Tribe certificate, several studentsmust have taken admission in different courses as Scheduled Tribecandidate and persons have also secured employment as Scheduled Tribecandidate. The State of Maharashtra has belatedly filed these appealswhich delay in filing these appeals have already been condoned by us AB

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Aand there being no interim orders in these appeals staying the effect ofjudgment of the High Court, grant of Scheduled Tribe certificate wasnatural consequence of the judgment of High Court.

101. We in the ends of justice directs that the admission taken andemployment secured by the members of ‘Gowari’ community on theBbasis of Scheduled Tribe certificate granted to them between 14.08.2018till date shall not be affected by this judgment and they shall be allowedto retain the benefit of Scheduled Tribe obtained by them. However, theabove Scheduled Tribe candidates shall not be entitled to any furtherbenefit as Scheduled Tribe except their initial admission in differentcourses or employment at different places on the strength of ScheduledCTribe certificate given to the ‘Gowari’ Community obtained between14.08.2018 and this day.

102. In view of the foregoing discussions, we are of the view thatthe High Court erred in declaring ‘Gowari’ as ‘Gond Gowari’ a ScheduledTribes referred to in item 28 in Entry 18.

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103. In result, we allow the appeals, set aside the impugnedjudgment of the High Court dated 14.08.2018 and dismiss the writpetitions. Parties shall bear their own costs.

EDivya Pandey

Appeals allowed.

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