VINAY PRAKASH AND ORS.versusSTATE OF BIHAR & ORS.

                     VINAY PRAKASH AND ORS.                                     A
                                     v.
                       STATE OF BIHAR & ORS.

                          FEBRUARY 17, 1997

                                                                                B
            [K. RAMASWAMY AND G.T. NANAVATI, JJ,]


      Constitution of India, 1950:

      Articles 342(1) and 366(25)--Scheduled Tribe-Claim for status
of-Presidential Notification containing "Lohara" as Scheduled                   C
Trib~"Lohars of Bihar, a backward community, claiming the status of
Scheduled Tribes on the basis of Scheduled Castes and Scheduled Tribes
orders (Amendment) Act, 1976-ln English version of the Presidential
Notification, Lo/tars was not shown as a Scheduled Trib~But in Hindi
version it found place in the Notification-Writ petition of appellants dis-     D
missed by High Court-Held Presidential Notification was unequivocal, and,
there/ore, Lohars were not Scheduled Tribe within the meaning of the defini-
tion "Scheduled Tribes" under Article 366(25) read with the Notification
issued by the President of India under Article 342(1)--Since the entry gained
was based on wrong translation made by the Department and order was
obtained on that basis, the same cannot be made the basis of the status of      E
Scheduled Trib~Appellants were not entitled to the status of Scheduled
Tribe from the inception-There is no illegality in the decision of High Court
warranting interferenc~Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976.
                                                                                F
      Nityanand Shamta v. State of Bihar, [1996] 3 SCC 576, relied on.

      B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR 316; Srish
Kumar Choudhury v. State of Tripura, [1990] Supp. SCC 220; Pa/ghat
1handan Sanmdhaya Samrakshana Samiti v. State of Kerala, [1994] 1 SCC
359; Parasram v. Shivchand, [1969] 1 SCC 20 and Shambhoo Nath v. Union          G
of India & Anr., C.A. No. 4631/90 decided on 15.9.1990, referred to.

      State of Kamataka v. Kumar G.N. Ambiga, [1995] Supp. 2 SCC 560
and Government of Andhra Pradesh v. Bala Musalaiah, [1995] 1 SCC 184,
held inapplicable.                                                              H
                                     97
                                                                                    y
    98                    SUPREME COURT REPORTS                  (1997) 2 S.C.R.

A        CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    No. 2714 of 1997.

         From the Judgment and Order dated 10.10.96 of the Patna High
    Court in L.P.A. No. 831of1996.

B         Rajiv Dhawan and Navin Prakash for the Petitioners.

          The following Order of the Court was delivered :

          This is the fourth attempt made by the Lohar Community to get into
    the status of Lohara. lohars are, admittedly, blacksmiths, a backward
C   community in the State of Bihar. Lohars are Scheduled Tribes in the State
    of Bihar.

           This special leave petition arises from the judgment and order of the
  ,..Patna High Court, made on October 10, 1996 in LPA No. 831/96. The
D President of India, in exercise of the power under Article 342(1) of the
    Constitution read with Article 366(25), notified the Scheduled Tribes for
    the State of Bihar thus: "such. tribe or tribal communities or parts of or
    groups within such tribes or tribal communities as are deemed under
    Articie 342 to be scheduled Tribes for the purposes of this Constitution,"
    Thereafter, the Scheduled Castes and Scheduled Tribes Orders (Amend-
E ment) Act, 1976 came to be made adding to or deleting from the lists
    certain castes. In Entry 20 of the Entries in relation to the State of Bihar,
    Lohara was wrongly translated as Lohra and the same was published in the
    State Gazette notification. That came to be rectified by notification pub-
    lished by the government on January 6, 1995. In the meanwhile, there was
p spate of litigation after the 1976 Amendment Act and the Lohars - a
    backward class - as stated earlier, claimed the status of Scheduled Tribes.
    When the said claims for social status of Scheduled Tribes came to be
    rejected, the petitioner' approached the courts. While the desired social
    status certificates were granted by the High Court in some cases, the same
    was refused in others. When the matter had come up for the first time,
G before a Bench of three Judges of this Court, to which one of us (K.
    Ramaswamy, J.) was a member, in Shambhoo Nath v. Union of India &
    Anr. C.A. No. 4631/90 decided On september 15, 1990, it was wrongly
    conceded by the counsel appearing for the Union of India that they were
    entitled to the status of scheduled Tribes. Ort that premis<:, the order of
H the Administrative Tribunal was set aside and direction was given to issue
                        VINAYPRAKASHv. STATE                                99

 the certificate of Scheduled Tribes. Since the social status certificates were   A
 not issued despite direction in this regard, a writ petition under Article 32
 was again filed in this Court seeking a writ of mandamus directing all the
 authorities in the State to issue certificates in the light of the judgment
 passed by this Court in Shambhoo Nath's case. That writ petition was also
 dismissed by a Bench of three Judges, to which one us (K. Ramaswamy,             B
 J.) was a member.

       Later, the matter was considered in extenso in Nityanand Shanna v.
State of Bihar, [1996] 3 SCC 576 wherein, considering the entire history of
the Lohars and Loharas, this Court has held in paragraphs 10, 11 and 12
that Lohars being backward class, they cannot claim the status as Lohara, C
which is a Scheduled Tribe and, therefore, the entitleme~t on that 'basis is
unconstitutional and it was a retrograde step to get into the status of
Scheduled Tribes to snatch the benefits made for the Scheduled Tribes. It
was further held that all those judgments which had taken contra view by
the.High Court are not good law. Consequently, they filed yet another writ D
petition in the High Court claiming, on the basis of the orders issued by .
competent authorities, the status of Lohara. In the impugned order, the
Division Bench has held that in the light of the law laid by this Court in
Nityanand Shanna's case, it was not open to the High Court to go into that
question and accordingly it dismissed the writ petition. The LPA filed in
that behalf also came to be dismissed. Thus, this special leave petition.    E

         Shri Rajiv Dhawan, learned senior counsel appearing for the
  petitioners, has contended that this Court in B. Basavalingappa v. D.
  Munichinnappa, [1965] 1 SCR 316 at 322), Srish Kumar Choudhury v. State
  of Tripura, [1990] Supp. SCC 220 para 12 and para 20 and Palghat Thandan p
  Samudhava Samrakshana Samiti v. State of Kera/a, (1994] 1 SCC 359 at 364,
  paras 14 and 19 had considered and held that it would not be open to the
  Court to enter into an enquiry as to whether a particular caste or tribe is
  Scheduled Tribe for finding out whether they are entitled to the benefit of
  the status conferred by the notification issued by the Presid~nt of India
  under Articles 341 and 342 of the Constitution, as the case may be; G
. therefore, the view of this Court mentioned_ in Nityanand Shamia's case is
 per incurium. We find no force in the contention. We make it clear that in
  the English version of the Presidential notification Lohars is not shown as
  a Scheduled. Tribe. But in the translated Hindi version, it found place in
 the notification. It was a wrong translation this aspect was examined in H
                                                                                        /
                                                                                            y
    100                   SUPREME COURT REPORTS                     [1997] 2 S.C.R.

A detail in Nityanand Shanna's case.

           It is seen that in Basavalingappa's case the question was whether
    'Bhovi' caste was Scheduled Caste within the meaning of Presidential
    notification for the purpose of finding whether the respondent therein was
    a Scheduled Caste candidate for the purpose of contesting the elections as
B   a reserved candidate. Admittedly, preceding the notification, Bhovi caste
    was a Scheduled Caste and under those circumstances, this Court had gone
     into that question. This Court had referred to a two Judge Bench decision
     in Parasram v. Shivchand, [1969] 1 SCC 20 and Srish Kumar Choudha1y's
     case wherein this Court had held that it would not be open to the Court
C    to go into the question was whether 'mochi' was included in the notified
     caste of chamar. Equally, in Pa/ghat's case (supra) the question was
     whether Thandans or Ezhavas in Malabar District, which was part of the
     Madras Province, were of Scheduled Castes or Backward Classes and in
     view of the admissions made by the Government in paragraphs 14 and 19,
D    this Court had held foat it was not open to the Government to go into that
     question until it was suitably modified by a Presidential notification. All
     these cases have been considered in one judgment or other by this Court
     in particular in Nityanand Shanna's case.

          The question is : whether a person, who is not a Scheduled Tribe
E under the Presidential notification, is entitled to get the status of a
    Scheduled Tribe? It is already held that though the English version of the
    Presidential notification clearly mentions "Lohara", there was no mention
    of Lohar. But while translating it, Lohars were also wrongly included as
    was pointed out by this Court in Nitya11a11d Shanna's case. It would, thus
F   be seen that the presidential notification was unequivocal and, therefore,
    Lohars were not Scheduled Tribes within the meaning of the definition




G
    'Scheduled Tribes' under Article 366(25) read with the notification issued
    by the President of India under Article 342(1) of the Constitution and,
    therefore, this Court had pointed out that they are not entitled to the status
    of Scheduled Tribes. It is clear that if a Presidential notification does
    contain any specific class or tribe or a part thereof, then, as held by this
    Court, it would be for the Parliament to make necessary amendments in
                                                                                                '
    Article 342(2) of the Constitution and it is ·not for the executive Govern-
    ment but for the Court to interpret the rules artd construe as to whether a
     particular caste or a tribe 'or a part or section th ere of is entitled to claim
H    the status of Scheduled Tribes. Under these circumstances, we think that
                          VINAY PRAKASH v. STATE                            101

    the decision in Nityanand Shanna's case does not require any reconsidera- A
    tion; so also other decisions referred to therein except the Pa/ghat's case,
    which was later considered in another judgment. Under these circumstan-
    ces, we do not think that there is any illegality in the decision rendered by
    the Division Bench of the High Court warranting interference.

           It is then contended that the doctrine of prospective application of B
    the judgment in Nityanand ·Sharma's case may be applied. In support
    thereof, learned counsel relied upon two judgments of this Court in State
    of Karnataka v. Kumar G.N. Ambiga, [1995] Supp. 2 SCC 560 and Govern-
    ment of Andhra Pradesh v. Bala Musa/aiah, (1995] 1 SCC 184. We are
    afraid, we cannot accede to the contention of the learned counsel. This is C
    a case where the respondents were not entitled; from the inception, to the
    social status of Scheduled Tribes. Since the entry gained by them was based
    on wrong translation made by the Department in the notification and the
    order was obtained on that basis, the same cannot be made the basis of
    grant of the status of Scheduled Tribes. We cannot allow perpetratration
    of the illegality since under the Constitution they-are not at all entitled to D
    the status of Scheduled Tribes, Under these circumstances, the above two
    judgments have no application to the facts in this. case.

          The Special Leave Petition is accordingly dismissed.

                                                            Petition dismissed.   E



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