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Narayan Behera Petit... v. State Of Orissa Thro...
Factual and Procedural Background
The petitioner, having passed the D.H.M.S Examination from the Government Homoeopathic Medical College at Bhubaneswar, applied for a public appointment as a Homoeopathic Medical Officer. He submitted a certificate from the Sub-Divisional Officer, Khurda, affirming his membership in the Scheduled Castes as a member of the Dewar community. Although selected after interview, the petitioner was not appointed on the ground that the opposite parties believed he did not fall within the Scheduled Castes under the Presidential Order pursuant to Article 341 of the Constitution. The petitioner filed this application seeking a direction that he be recognized as belonging to the Scheduled Castes and be appointed accordingly. The case involved a dispute over community classification, with the petitioner relying on certificates and correspondences between State and Central governments, and the respondents contesting his caste status based on other official reports and correspondence.
Legal Issues Presented
- Whether the petitioner belongs to the Scheduled Castes as defined under the Presidential Order issued under Article 341 of the Constitution.
- Whether the petitioner should be appointed to the post for which he was selected, given the dispute over his caste classification.
Arguments of the Parties
Petitioner's Arguments
- The petitioner claimed membership in the Scheduled Castes as a member of the Dewar community, supported by a certificate from the Sub-Divisional Officer, Khurda.
- He relied on a series of correspondences between the State Government and the Government of India supporting his claim.
- He submitted a certificate from the Collector of Puri confirming his belonging to the Dewar community.
Opposite Parties' Arguments
- The opposite parties contended that the petitioner is a Kaibaria, a community not covered by the Scheduled Castes Order.
- They relied on a report by the Collector of Puri and correspondence between the State and Central Governments to support their position.
- Affidavits were filed in support of their stand that the petitioner does not fall under the Scheduled Castes as per the Presidential Order.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| B Basavalingappa v. D. Munichinnappa | Interpretation of caste names in the Scheduled Castes Order; recognition that spelling variations do not exclude a caste from the list. | Supported the view that Dewar and Dhewar are synonymous and that the community referred to is the Dhibara community traditionally engaged in fishing and boating. |
| Bhaiya Lal v. Harihishan Singh | The finality of the Presidential notification under Article 341 in determining Scheduled Castes status. | Confirmed that courts cannot add to or subtract from the Scheduled Castes listed in the Presidential notification. |
| Bhaiya Bam Munda v. Anirudha Paiar | Reinforcement of the principle that the Presidential notification is conclusive for Scheduled Castes classification. | Supported the position that the court must respect the list as notified and cannot alter it. |
| Bimala Peria v. Thabir Dandia | Application of the principle that the Scheduled Castes list as notified is definitive. | Reiterated the settled law that the court cannot modify the Scheduled Castes list. |
| Prasana Mishal v. Jain Jamana | Same principle regarding the finality of the Presidential notification. | Supported the court's approach in respecting the notification in caste classification disputes. |
Court's Reasoning and Analysis
The court analyzed the constitutional provisions under Article 341, which grants the President the authority to specify Scheduled Castes by public notification, and emphasized that this notification is conclusive for determining caste status. The court examined the Scheduled Castes Order, 1950, and its amendments, noting that the Dewar community is listed under Orissa. It addressed the issue of spelling variations (Dewar vs. Dhewar) and relied on official correspondence indicating these were considered synonymous and referred to the Dhibara community, traditionally engaged in fishing and boating.
The court further explained that "Dhibara" is not a distinct caste but denotes a profession, and that communities such as Kaibartas and Keutas, traditionally associated with the Dhibara profession, are included within this term. It acknowledged the State Government's stance and the Central Government's position that the Presidential Order cannot be altered except by Parliamentary legislation.
Considering the evidence and certificates, particularly the certificate from the Collector of Puri, the court accepted the petitioner's claim of belonging to the Scheduled Castes under the Dewar community. Consequently, the court held that the petitioner was entitled to appointment to the post for which he was selected.
Holding and Implications
The writ application was allowed, and the opposite parties were directed to issue the appointment to the petitioner for the post of Homoeopathic Medical Officer, subject to applicable rules and conditions.
This decision directly affects the parties by requiring the appointment of the petitioner. No broader precedent was established beyond the application of existing constitutional and statutory provisions regarding Scheduled Castes classification and appointment rights.
R.N Misra, J.:— Petitioner passed the D.H.M.S Examination from the Government Homoeopathic Medical College at Bhubaneswar and was an applicant for the post advertised by the opposite party no. 3 vide Annexure-9 and attached a certificate granted by the Sub-Divisional Officer, Khurda, to the effect that the petitioner is a member of the Scheduled Castes as he is of Dewar community. After interview, petitioner was duly selected for appointment as a Homoeopathic Medical Officer, but was not given the appointment. Petitioner gathered that the appointment was no” being issued as the opposite parties were of the view that the petitioner did not come within the ambit of the Presidential Order under Art. 341 of the Constitution. He has, therefore, made this application for a direction to the opposite parties to proceed on the footing that petitioner belongs to the Scheduled Castes and should be given public appointment for which he has been duly selected. Petitioner has relied upon a series of correspondences between the State Government and the Government of India and their respective officers.
2. The Deputy Secretary to Government in the Tribal and Plural Welfare Department has given a counter affidavit on behalf of the opposite parties wherein it has been stated that the Collector of Pun vide Annexure-A reported that the petitioner is a Kaibaria and, therefore, not covered by the Scheduled Castes Order. Reliance has been placed on some correspondence between the State Government and the Central (jovernment in support of the stand of the opposite parties. Petitioner has thereafter filed a rejoinder and has relied upon a certificate given by the Collector of Puri under Annexure-10 to the effect that petitionet belongs to the Dewar community. The under Secretary to Government in the Tribal & Rural Welfare Department filed a further affidavit in suppott of the stand of the opposite parties.
3. Article 341 of the Constitution provides—
(i) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
4. In exercise of the powers contemplated by the Article, the Constitution (Scheduled Castes) Order, 1950, came into existence as early as August, 1950. By several Parliamentary enactments, the List has undergone amendments. Clause 2 of the Order provides:—
“Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes, specified in Parts 1 to XVIII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.”
5. So far as the State of Orissa is concerned, entry no. 24 is Dewar. In the communication of the Ministry of Home Affairs dated 8-5.1957 to the Secretary to the Government of Orissa in the Tribal & Rural Welfare Department (vide Annexure-1), it was stated:—
“……. The Government of India presume that the absence of this letter ‘h’ in the word Dewar will not operate to the disadvantage of the case. Since the list can be modified only by a Parliamentary legislation, it is necessary that this lacuna should not be allowed to operate against them From Annexure-2 which is a communication from the Assistant Commissioner for Scheduled Tribes and Scheduled Castes of Orissa to the Assistant Commissioner of Scheduled Castes and Scheduled Tribes, Government of India. New Delhi it appears that Dewar and Dhewar were considered to be synonymous and there was no community in the State known as Dewar. From Annexure-3, it appears that the State Government informed the Collector of Ganjara that Dewar should be read as Dhewar The principle indicated by the Constitution ???Bench of the Supreme Court in the case of B Basavalingappa v. D. Munichinnappa1., directly supports the position that Dewar should be read as Dhewar. Whether it is Dewar or Dhewar, it is common ground before us that the real community to which reference is intended to have been made is Dhibara, community traditionally engaged in fish-. ing, boating et cetera.
6. Law is fairly settled that the public notification contemplated in Article 341 is the final word in resolving a dispute as to which communities belong to the Scheduled Castes and it is not for the Court to add to or take away from the Schedules in the Notification. To that effect is the decisions of the Supreme Court in the case of Bhaiya Lal v. Harihishan Singh2., and Bhaiya Bam Munda v. Anirudha Paiar3.. In several cases, this Court has also taken the same view. (See Bimala Peria v. Thabir Dandia4., and Prasana Mishal v. Jain Jamana)5..
7. We have just indicated -that according to Clause 2 of the Scheduled Castes Order, the castes, races or tribes or parts thereof as specified in the Schedule are to be taken as Scheduled Castes. Dhibara is a caste and traditionally it refers to the community engaged in the trade of fishing and rowing of boats. Etymologically derived from the root “Dhi” the word Dhibara refers to the persons engaged in catching of fish. In the “Pumachandra Oriya Bhashahosh” which is an accepted authority, the meaning nf the word ‘Dhibera’ has been given as “those whose occupation is catching fish”. As we have already indicated, Dhibara is not a community as such and essentially refers to that section of people in the Society which take to the profession of catching fish. The Supreme Court indicated in Basavalingappa's case.
’ As the President could not have included in the Order a non-existent caste, it means the word ‘Bhovi’ relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court has held that ever since the Order of 1956, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same.???—”
8. Adopting the substance of the ratio, it should follow that when there is no community known as Dhibara as such and Dhibara essentially refers to a profession, Kaibartas and Keutas who are traditionally accepted to belong to Dhibara profession should be taken as included in the term Dhibera.
9. It may hot be inappropriate to indicate here that the State Government had taken this stand in several communications to the Union Government though the Central Government had not accepted the recommendations of the State Government on the ground that under the Constitution it is not open to the President to make any amendment to the Order.
10. We are inclined to accept the petitioner's stand that he belongs to the Dkibara community and the Collector of Puri had rightly given him the certificate under Annexure-10 Now that we have found the petitioner to be of the Scheduled Castes, it must follow that the opposite patties should issue the appointment for the post to which the petitioner has been selected.
11. The writ application is accordingly allowed and the opposite parties are called upon to issue the appointment to the petitioner subject to any other rules or conditions as may be applicable. The petitioner shall have costs of, the petition. Hearing fee is assessed at rupees one hundred.
12. N.K Das, J.:— I agree.
Writ application allowed.
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