Rajesh Shankar, J.:— The present writ petition has been filed for quashing letter no. 6493 dated 13.08.2019 (Annexure-9 to the writ petition) and the report prepared by the respondent no. 3 - Director, Dr. Ram Dayal Munda Tribal Welfare Research Institute, Government of Jharkhand, Ranchi attached with letter no. 381 dated 03.08.2018 (Annexure-9/1 to the writ petition), whereby the caste ‘Lohar’ has been considered under Other Backward Caste (OBC) category, rather than Schedule Tribe. Further prayer has been made for issuance of direction upon the respondents to declare the caste ‘Lohar’ under Schedule Tribe category in the light of Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 [Act No. 108 of 1976 issued by Government of India] (Annexure-1 to the writ petition) and Article 342 of the Constitution of India. The petitioner has also prayed for issuance of direction upon the respondents to ensure that the concerned authorities of the Government of Jharkhand forthwith issue caste certificates of “Scheduled Tribe” to the members of ‘Lohar’ caste and provide the benefits of reservation in accordance with the reservation rules as also in the light of the Act, 1976 and Article 342 of the Constitution of India. The petitioner has further prayed for issuance of direction upon the respondent no. 5 - Ministry of Social Justice and Empowerment through its Secretary, New Delhi to delete the name of ‘Lohar’ caste from the Central list of Other Backward Caste relating to the State of Jharkhand, at Serial No. 48 of page-4 in the Hindi version list and at Serial No. 48 of page-18 in the English version list notified vide Gazette Notification No. 12015/13/2010-B.C-II dated 08.12.2011 (Annexure-11 to the writ petition). The petitioner has also prayed for issuance of direction upon the respondent no. 4 - Union of India through the Secretary, Ministry of Tribal Affairs, New Delhi to include the name of ‘Lohar’ caste in the list of Scheduled Tribe category (online portal) relating to the State of Jharkhand in the light of the Act, 1976 and Article 342 of the Constitution of India.
2. Learned counsel for the petitioners submits that ‘Lohar’ community is notified in the Act, 1976 under Entry No. 22 in the Hindi version of the Scheduled Tribe List relating to State of Bihar (Part 3) vide the Central Government Act No. 108 of 1976 dated 18.09.1976. It is further submitted that Hindi version of the Act, 1976 shall be deemed to be the authoritative text under Clause (a) of sub-section (1) of Section 5 of the Official Language Act, 1963. The Hon'ble Supreme Court in the case of “Kanoria Chemical and Industries v. State of U.P.” ‘reported in (1992) 2 SCC 124, has considered the matter regarding any doubt or ambiguity or difference or conflict appearing on plain reading of the Hindi version words and the English version words of the legislation/Act and has held that the Hindi text is the correct/true version of the Act/legislation. The petitioners who belong to ‘Lohar’ community made a detailed representation to the respondent authorities to implement and comply the relevant law as declared in the Act, 1976 as well as to include ‘Lohar’ Community in the Scheduled Tribe, however, the said claim of the petitioners has been rejected by the respondent no. 2.
3. Mr. Anil Kumar, learned ASGI appearing for the Union of India and Mr. Ashutosh Anand, learned AAG-III appearing on behalf of the State of Jharkhand, while producing a copy of a recent judgment rendered by the Hon'ble Supreme Court in the case of “Sunil Kumar Rai v. State of Bihar” reported in 2022 SCC OnLine SC 232, submits that the issue as to whether ‘Lohar’ caste can be included in Schedule Tribe category is no more res-integra as in the said judgment, the Hon'ble Supreme Court has specifically held that while ‘Lohara’/‘Lohra’ comes under Schedule Tribe, ‘Lohar’ does not.
4. Heard learned counsel for the parties and perused the materials available on record. This Court finds that under Item No. 20 of the Constitution (Scheduled Tribes) Order, 1950, the tribe ‘Lohara’ was mentioned as a Scheduled Tribe for the State of Bihar. Subsequently, in the year 1976, the Constitution (Scheduled Tribes) Order, 1950 was amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (hereinafter referred to as “the Act, 1976”) and in the Second Schedule, Part-III (Bihar) under Entry 22, in English version of the same, ‘Lohara’ and ‘Lohra’ have been mentioned as Scheduled Tribe. However, in the Hindi version of the said entry, ‘Lohara’ was translated as ‘Lohar’. Due to the said differences appearing in the English and Hindi version of the Act, 1976, attempts were made by ‘Lohar’ community to treat them as scheduled Tribe.
5. The Hon'ble Supreme Court in the case of “Sunil Kumar Rai” (supra), while deciding the question as to whether ‘Lohar’ community comes under the Scheduled Tribe category, also discussed few earlier judgments on this issue.
6. Their Lordships have observed that the first litigation came to the Supreme Court on the said issue in the case of “Shambhoo Nath v. Union of India [CA No. 4631 of 1990 dated 12-9-1990], wherein it has been held that looking to the record, the accepted position is that ‘Lohar’ community is included in the Scheduled Tribe from the date of amendment of the list in 1976.
7. Next judgment on the issue is “Nityanand Sharma v. State of Bihar” reported in (1996) 3 SCC 576, wherein it has been held that ‘Lohars’ are Other Backward Class. They are not Scheduled Tribes and the court cannot give any declaration that ‘Lohars’ are equivalent to ‘Loharas’ or ‘Lohras’ or that they are entitled to the same status. In “Nityanand Sharma” (supra), the case of “Shambhoo Nath” (supra) was also dealt with and was held that in the said case, the court did not intend to lay down any law that ‘Lohars’ are Scheduled Tribes. Unfortunately, due to concession by the counsel for the Union of India, without due verification from the English version, this Court accepted Hindi version placed before the Bench and held that they were included as Scheduled Tribes.
8. Their Lordships also referred the judgment rendered in the case of “Vinay Prakash v. State of Bihar” reported in (1997) 3 SCC 406, wherein it was again reiterated by the Hon'ble Supreme Court that ‘Lohars’ are admittedly blacksmiths-a backward community in the State of Bihar, whereas ‘Loharas’ are Scheduled Tribes in the State of Bihar. The Court further held that the English version of the Presidential notification clearly mentioned ‘Lohara’ and there was no mention of ‘Lohar’. But while translating it, ‘Lohars’ were also wrongly included. The Presidential notification was unequivocal and, therefore, ‘Lohars’ were not Scheduled Tribes within the meaning of the definition of “Scheduled Tribes” as mentioned under Article 366(25) read with the notification issued by the President of India under Article 342(1) of the Constitution of India and, therefore, they are not entitled to the status of Scheduled Tribes. If a Presidential notification contains any specific class or tribe or a part thereof, it would be for Parliament to make necessary amendments in Article 342(2) of the Constitution and it is not for the executive Government, but for the Court to interpret the rules and construe as to whether a particular caste or a tribe or a part or section thereof is entitled to claim the status of Scheduled Tribes.
9. Their Lordships further referred the judgment of “Prabhat Kumar Sharma v. Union Public Service Commission reported in (2006) 10 SCC 587, wherein it has been held that Article 348 of the Constitution clearly provides English to be the authoritative text in respect of Acts of Parliament, amendments to Acts, subject to any law made by Parliament. The Official Languages Act, 1963 vide Section 3 thereof provides for continuance of English language for official purposes of the Union and for use in Parliament. Section 5 provides for a Hindi translation of all Central Acts and Ordinances promulgated by the President or if any order or rule or regulation or bye-laws is issued under the Constitution or under any Central Act. Section 6 deals with the State Act which is not relevant in the instant case. On conjoint reading of Article 348 of the Constitution as well as Sections 3 and 5 of the Official Languages Act, 1963, English continues to remain the authoritative text in respect of the Acts of Parliament.
10. Having referred the aforesaid earlier judgments, Their Lordships in “Sunil Kumar Rai” (supra) have held as under:
24. In this background, we must consider the challenge to the impugned Notification. The stand of State is that in the year 1976, in the Hindi version of the Act, at serial No. 22 of the List of Scheduled Tribes for Bihar, the social group ‘Lohar, Lohra’ (in Hindi) was specified. It is their further case that later by another amendment in the year 2006 (Act 48/2006), amendment was made to the Act of 1976, whereby the schedule in part III relating to the State of Bihar, for item No. 22 (since renumbered as item 21), as appearing in the Hindi version of the Act, the words ‘Lohara, Lohra’ were substituted for the words ‘Lohar, Lohra’. Reference is made to the fact that during this time various associations of Lohar caste were repeatedly making representation and emphasizing that the word ‘Lohara’ was the English translation of the word ‘Lohar’. It is further contended that in Act No. 48 of 2006, persons belonging to the Lohar social group in the State of Bihar were not being recognized as Scheduled Tribe at the time. However, keeping in view the backwardness of the said caste, an ethnographic report was commissioned to be prepared to evaluate the social and educational status of the Lohar social group. This group, inter alia, concluded on the basis of survey of 38 districts of Bihar that Lohara/Lohrawere both mere synonyms of the Lohar social group and were one and the same. On the basis of the ethnographic report, the State recommended to the Central Government to include the Lohar social group in the list of Scheduled Tribes. During the pendency of the recommendation with the Central Government, it came to the notice of the State Government that Parliament had enacted Act 23 of 2016 which had repealed the earlier amending Act of 2006 which had substituted the words ‘Lohar, Lohra’ with the words ‘Lohara, Lohra’. Various associations of the Lohar caste started claiming, owing to the repeal of the 2006 Act, that the status of the 1976 Act stood restored. In the light of the aforesaid and owing to the ethnographic report, the State decided to facilitate the Lohar caste in the State of Bihar as a Scheduled Tribe on the basis of the impugned Notification. The State Government has also requested the Central Government to delete the entry of ‘Lohar’ caste from the Central Government's list of OBCs and the response of the Central Government in this regard is awaited, is the further case of the State. In the meantime, Entry No. 115 of the EBC List pertaining to caste ‘Lohar’ was deleted. Further additionally, and very recently, the State Government has also made a request to the Central Government dated 28.10.2021 requesting it to delete ‘Lohar’ caste from entry No. 18 of the Central OBC list for Bihar by letter dated 08.08.2016 which was published as Gazette No. 689 dated 23.08.2016 which is the impugned Notification.
25. We are deeply anguished by the state of affairs which has been brought to our notice through the contents of the petition under Article 32. This is not a matter which has not engaged the attention of this Court, which as we have noticed has dealt with the issue on as many as three occasions. It has been clearly and unequivocally declared that Lohars are not members of the Scheduled Tribe and they are members of the OBCs. Under the principle of separation of powers, in the manner we have it under the Constitution, it becomes the duty and the right of the Courts to settle disputes. The Constitution, no doubt, has given powers to the other organs of the State. When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land. This is a case where we have noticed an unbroken line of reasoning and decisions as noticed in the three judgments which we have referred to. This Court has also pronounced on the aspect of the English language prevailing over the Hindi version, if there is a conflict.
26. We should further realize the impact of a decision on the Rights and what is more, Fundamental Rights of the citizens flowing from of Government's action : and the need to increasingly evolve a system, whereby decision making promotes and strengthens the rule of law. Respect for the decisions of the Courts holding the field are the very core of Rule of Law. Disregard or neglecting the position at law expounded by the Courts would spell doom for a country which is governed by the Rule of Law.
27. In this case, it is clear as daylight that the Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar. This position has attained articulation at the hands of this Court and this Court has traced the history of the matter in the decision in Prabhat Kumar Sharma (supra).
28. What has apparently happened is that in the year 2006, initially, by the Act 48 of 2006, in the Hindi version of the 1976 amendment, the words ‘Lohara, Lohra’ were added as serial No. 21 in place of the earlier serial No. 22 which was subsequently renumbered as serial No. 21. Apparently, this amendment did not and would not advance the case for the Lohars being Scheduled Tribes. On the other hand, it was in conformity with the English version which is the authoritative version. Subsequently, in 2016, it is true that Act 48 of 2006 came to be repealed. Even taking the effect of the repeal to be that Act 48 of 2006 which was repealed was never in the statute book, it cannot possibly lead to the position that Lohars can make their way into the list of Scheduled Tribes. What is the basis for the respondent-State to take it upon itself to issue the impugned Notification by which referring to the 2016 amendment repealing the 2006 Act, it proceeded to give approval to caste certificate of Scheduled Tribe to Lohara, Lohar community? Lohar is not same as Lohara. Including Lohars alongside ‘Lohara’ is clearly illegal and arbitrary. The English text which has been held to be the authoritative text and the decisions of this Court have been ignored. We cannot at all, approve this approach which at the very minimum betrays total non-application of mind which, in turn, leads to an inference that it has been arrived in an arbitrary manner. Thus, it attracts the wrath of Article 14 of the Constitution. This, in turn, justifies the approach of the petitioners under Article 32 of the Constitution.
11. In the present case, learned counsel for the petitioners has given much emphasis on the argument that by the Act, 1976, ‘Lohar’ community has been included in the list of Scheduled Tribe under Serial No. 22 of Second Schedule, Part-III (Bihar) as appearing in the Hindi version of the said Act and in view of Clause (a) of subsection (1) of Section 5 of the Official Languages Act, 1963, Hindi version of the Act, 1976 shall be deemed to be the authoritative text thereof in Hindi and the same will prevail over English version.
12. I find no substance in the said argument of learned counsel for the petitioner in view of the fact that the Hon'ble Supreme Court in the case of “Sunil Kumar Rai” (supra) has reiterated the view taken in the case of “Prabhat Kumar Sharma” (supra) that on the conjoint reading of Article 348 of the Constitution as well as Sections 3 and 5 of the Official Language Act, 1963, English version continues to remain the authoritative text in respect of the Acts of Parliament. Their Lordships in the case of “Sunil Kumar Rai” (supra) have held that ‘Lohar’ is not same as ‘Lohara’. ‘Lohara’ comes under the Scheduled Tribe category while ‘Lohar’ does not. It has further been held that inclusion of persons, who are otherwise disentitled from being in the category of Scheduled Tribes, would directly constitute an unjustifiable inroad into the rights of the actual members of the Scheduled Tribe in the matter of public employment and in other respects.
13. Considering that the issue as to whether ‘Lohar’ caste is to be considered as “Schedule Tribe” has already been set at rest by the Hon'ble Supreme Court answering it in negative in the judgments referred hereinabove, I find no merit in the claim of the writ petitioners.
14. The writ petition being devoid of merit is accordingly dismissed.
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