S. Roy, J.:— Are the Tamarias who are original inhabitants of Tamar in the district of Ranchi and have settled in the district of Singbhum Mundas? According to the petitioners they are, and according to the respondents they are not.
2. It appears that the State Government constituted a Commission known as Backward Class Commission to advise the Government whether there is sufficient reservation of posts in Government services for the socially and educationally backward classes of citizens. The Commission gave its advise. The State Government thereafter took decision for reservation of post for those classes of citizens. The decision of the State Government as well as the classes of citizens who, according to the State Government, are socially and educationally backward and for whom reservation of posts should be made are contained in Annexure-1 to the writ petition. In that annexure in the list of socially and educationally backward classes Tamaria has been shown in serial No. 52. Tamaria has also been shown in serial No. 34 as very backward class. The petitioners have challenged this notification on the ground that Tamaria being Patar Munda could not have been included in the list of backward classes and they could not have been included in the list of backward classes and very backward classes. According to the petitioners, thousands of people belonging to Munda tribe migrated from Tamar in the district of Ranchi to the district of Singhbhum. In the district of Singhbhum, they are called Tamaria as they migrared from Tamar. Although they are called Tamaria in the district of Singhbhum they are in fact Munda a Scheduled Tribe. The factum of migration of mundas from Tamar to the district of Singhbhum has not been controverted in the counter affidavit filed on behalf of respondent No. 6. The assertion that Tamarias as belong to Patar Munda Community has also not been denied in the counter affidavit. According to the counter affidavit, since Tamnria has not been recognised as Scheduled Tribes in the State of Bihar under the Constitution (Scheduled Tribes) Order, 1950, they cannot be held to be the members of Scheduled Tribes.
3. In exercise of the powers conferred by clause (1) of Article 342 of the Constitution, the President made an Order known as the Constitution (Scheduled Tribes) Order, 1950. The tribes or tribal communities or part of or groups within the tribes or tribal communities are specified in that Order. In the State of Bihar amongst others, Munda is one of the tribes enumerated in the schedule. It is common case of both the parties that Munda is a Scheduled Tribe. According to the respondents since Tamaria has not been included as one of the Tribes in the Schedule to that Order made by the President, Tamarias cannot be said to be members of a Scheduled Tribe.
4. Under Article 342(1) of the Constitution, the President by public notification is impowered to specify the tribes or tribal communities or parts of or group within the tribes or tribal communities which shall for the purpose of the Constitution be deemed to be Scheduled Tribes in relation to a State or Union territory. Under Article 342(2) Parliament may by law include in or exclude from the list of the Scheduled Tribes so notified under Article 342(1) any tribe or tribal community. As noticed above, Tamaria does not find place in the notification issued under Article 342(1) nor Parliament by law has included Tamaria in that notification in exercise of powers conferred under Article 342(2).
5. Objection was raised on behalf of the respondents with regard to the maintainability of the writ petition on the ground that as Tamaria does not find place as one of the tribes in the notification made by the President under Article 342(1) of the Constitution, this Court cannot add any tribe to the Schedule. Objection regarding the maintainability of the writ petition was also taken on behalf of the respondents on the ground that since the State Government decided that the Tamarias are members of backward classes and very backward classes, this Court cannot alter that.
6. So far the second objection raised by the respondents is concerned, it is necessary to notice Annexure-1. It is settled that the State Government for the purpose of Article 15(4) of the Constitution may appoint a committee or commission to advise it to locate socially and educationally backward classes of citizens in the State. The appointment of said commission or committee is permissible, notwithstanding Article 340 which empowers the Presidents to appoint a commission to investigate the conditions of backward classes with a view to taking steps to remove the difficulties under which socially and educationally backward classes labour and to improve their condition. Reference may be made to M.R Balaji v. State of Mysore, (1972) 1 SCC 660 : AIR 1972 SC 1375. The decision of the State Government as contained in Annexure-1 is to give effect to Article 15(4). This also appears on the face of Annexure-1. This, therefore, has nothing to do with the notifications issued under Articles 341(1) and 342(1) of the Constitution.
7. So far the first objection of the respondents is concerned, Mr. Thakur Prasad, learned counsel for the petitioners contended that since Tamaria is in fact a Munda, this Court can strike down Annexure-1 so far Tamaria is concerned. Mr. Thakur Prasad relied on Bhaiya Ram Munda v. Anirudh Patar, (1970) 2 SCC 825 : AIR 1971 SC 2533.
8. Two decisions of the Supreme Court are required to be noticed, one is the case of B. Basavalingappa v. Munichinnappa, AIR 1965 SC 1269 and the other is of Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557. In both the cases, the Presidential Notification was under Article 341(1) that is, the Constitution (Scheduled Castes) Order, 1950. The only distinction between Articles 341 and 342 is that the former is in relation to Scheduled Castes and the latter is in relation to Scheduled Tribes. In Basavalingappa's case (supra) the Supreme Court observed that:—
“It may be accepted that it is not open to make any modification of the order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also part of caste A and, therefore, must be deemed to be included in caste A.”
9. In spite of this observation, the Supreme Court in the peculiar circumstances of that case, allowed evidence to be led to ascertain the caste specified in the Order. From the report of Bhaiya Ram's case (supra), it appears that it was contended in that case that Dohar caste is a sub-caste of Chamar caste. It was held that the contention that Dohar caste is a sub-caste of Chamar caste cannot be entertained in view of the Constitution (Scheduled Castes) Order, 1950. The Supreme Court observed with reference to Article 341(1):
“It is thus clear that in order to determine whether or not a particular caste is a Scheduled Caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf………”
10. The case of Basavalingappa (supra) was relied upon in Bhaiya Lal's case (supra).
11. The cases of B. Basavalingappa and Bhaiya Lal (supra) were noticed by the Supreme Court in Bhaiya Ram Munda's case (supra). In that case, the election of Anirudh from an Assembly Constituency reserved for Scheduled Tribes were challenged by Bhaiya Ram Munda. According to Bhaiya Ram Anirudh Patar was not a Munda and, therefore, was not entitled to contest from the reserved constituency. The Supreme Court looked into the evidence adduced by the parties before Election Tribunal. It also looked into the Books written by Sociologists and Anthropologists. With reference to the case of B. Basavalingappa the Supreme Court observed that:—
“The decision in this case lends no support to the contention that evidence is inadmissible for the purpose of showing that an entry in the presidential Order was intended to mean.
12. With reference to the case of Bhaiya Lal (supra), it observed that:—
“It was held by this Court that the plea that the appellant is not a Chamar and as such, he could not claim the status of a Chamar claiming that he belonged to Dohar Caste which is a sub-caste of the Chamar Caste and that an enquiry of the mind would not be permissible having regard to the provision contained in Article 341 of the Constitution………The Court declined to allow a plea to be raised that Dohars were in some areas recognised as a sub-caste of Chamars. The contention was plainly futile, once it was held that the candidate was not a Chamar in the Constituency to which the Order related and Dohars were not a Scheduled Caste.”
13. It may be noticed that in Bhaiya Ram Munda's case (supra), the Assembly Constituency was from Tamar.
14. It has already been noticed that the assertion of the petitioners that thousands of people belonging to Munda Tribe migrated from Tamar region of the district of Ranchi to Singhbhum, who are commonly called Tamarias by the people of Singhbhum and that the Tamaria belonged to the Patar Munda community, have not been denied by the respondents. As in the case of Bhaiya Ram Munda (supra) in this case also:—
“It is not the contention of the first respondent that he was a Patar member of a Tribe which is not Munda, but he was recognised as a Munda. His case is that in his Tribe, he was a Munda Patar. (Para 35 of AIR).
15. In view of the pleadings of the petitioners which have not been denied by the respondents, the case of Bhaiya Ram Munda (supra) shall apply. It must therefore, be held that Tamarias are Patar Mundas.
16. In the result, it is held that the Tamarias of Singhbhum are Patar Mundas and they are included in the notification issued by the President under Article 342(1) of the Constitution. Consequently, their inclusion in item No. 52 under the heading “backward class” in Annexure-1 to the writ petition must be struck down. It may be noticed that except the question of maintainability of the writ petition, no other argument was advanced on behalf of the respondents. Let a writ be accordingly issued. There shall be no order as to costs.
L.P.N Shahdeo, J.:— I agree.
Comments