ORDER 1. What is challenged in this petition is a Notification/Circular dated 3rd March, 1979, issued by the Government of Bihar addressed to various functionaries of the State. 2. Even though the text of this Notification is in Hindi, the English translation, as far as text generally suggests to us is that it deals with a situation where a tribal woman marries an upper caste Hindu (SAVARN HINDU) and in such an eventuality the off springs born out of this wedlock would be accorded the status of belonging to the Scheduled Tribe to which the woman belongs, but only if and after the Community of such Scheduled Tribe accepts the factum and the reality of this marriage. In other words, the Community of this Tribe accepts the couple into its fold. Based on this, this Communication accordingly directs and instructs all the State functionaries to hold enquiries with respect to the foresaid aspect as to whether the Community of such Scheduled Tribe has accepted the marriage, thus recognising the existence of the arrangement between the tribal woman and the upper caste Hindu and depending upon the result of such enquiry, the grant of facilities due to the Scheduled Tribes may be made available to the off springs born out of such a wedlock. In the said Circular, a reference has been made to the Judgment of the Supreme Court in the case of V.V. Giri v. D.S. Dora and Ors. reported in AIR 1959 SC 1318 . 3. An affidavit has been filed on behalf of the Government of Jharkhand by the Joint Secretary in the Personnel and Administrative Reforms Department. Affidavit has also been filed on behalf of the Union of India by the Joint Director in the Ministry of Tribal Affairs, Govt of India. Both these affidavits clearly suggest that the aforesaid Cir- cular/Notification dated 3.3.1979 was issued by the Government of Bihar on the basis of the Communication dated 21st May, 1977 issued from the Government of India, Ministry of Home Affairs addressed to the Chief Secretaries of all States. The text of the aforesaid Communication Is reproduced hereunder for ready reference. It reads thus : "Subject--Caste status of the offsprings of inter-caste marriage couples. The text of the aforesaid Communication Is reproduced hereunder for ready reference. It reads thus : "Subject--Caste status of the offsprings of inter-caste marriage couples. Sir, I am directed to say that enquiries about the caste status of the offsprings of the inter-caste married couples have been sought from this Ministry by various State Governments/Union Territory Administrations from time to time. Accordingly this question has been receiving the attention of this Ministry for quite some time. A set of legal views on the caste status of such offsprings was already brought out vide this Ministrys letter of even number, dated the 4th March, 1975. The matter has, however, been further examined and the comprehensive legal position about the status of the offsprings born of couple where one or both of the spouses is/are member(s) of Scheduled Castes and/or Scheduled Tribes, is given In the enclosed Annexure (A to D). 2. It is requested that these instructions may be circulated among all the authorities empowered to issue Scheduled Caste and Scheduled Tribe certificates." 4. Since, Annexure-B to the aforesaid Notification Is relevant for our purposes, the relevant extract from the said Annexure-B, so as to property appreciate and understand the perspective and the background in which the controversy forming the subject matter of this petition has arisen and the manner in which It can properly be dealt with is reproduced as under : "4. In the case of marriage between a tribal with a non-tribal the main factor of consideration is whether the couple were accepted by the tribal society to which the tribal spouse belongs. If he or she, as the case may be is accepted by the society then their children shall be deemed to be Scheduled Tribes. But this situation can normally happen when the husband is a member of the Scheduled Tribe. However, circumstances may be thereof when a Scheduled Tribe woman may have children from marriage with a non-scheduled Tribe man. In that event the children may be treated as Scheduled Tribes only if the members of the Scheduled Tribe community accept them and treat them as members of their own community. However, circumstances may be thereof when a Scheduled Tribe woman may have children from marriage with a non-scheduled Tribe man. In that event the children may be treated as Scheduled Tribes only if the members of the Scheduled Tribe community accept them and treat them as members of their own community. This view has been held by the Assam High Court, in Wilson Read v. C.S. Booth, reported in AIR 1959 at Assam page 128, where it has been held- The test which will determine the membership of the individual will not be the purity of blood, but his own conduct in following the customs and the way of life of the tribe; the way in which he has been treated by the community and the practice amongst the tribal people in the matter of dealing with persons whose mother was a Khasi and father was a European." Similarly, in the case of Muthuswamy Mudaliar v. Masilamam Mudaliar, reported in 1LR 33 Mad. 342, the Court held- "It is not uncommon process for a class or tribe outside the pale of caste to another pale and if other communities recognised their claim, they are treated as of that class or caste. Similarly, in V.V. Girl v. D.S. Dora, reported in AIR 1959 SC 1318 (1327), the Court held- The caste status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry." "5. As mentioned above, it is the recognition and acceptance by the Society of the children born out of a marriage between a member of Scheduled Tribe with an outsider, which is the main determining factor Irrespective of whether the Tribe is matriarchal or patriarchal. The final result will always depend on whether the child was accepted as a member of the Scheduled Tribe or not. 6. The general position of law has been stated above. However, each individual case will have to be examined in the light of existing facts and circumstances In such cases." 5. Mr. P.K. Sinha, learned Senior Counsel appearing for the petitioners, has relied upon two Judgments of the Supreme Court, in the case of Madhu Kishwar and Ors. v. State of Bihar and Ors. AIR 1996 SC 1864 . and In the case of State of Maharashtra v. Mlllnd andOrs. Mr. P.K. Sinha, learned Senior Counsel appearing for the petitioners, has relied upon two Judgments of the Supreme Court, in the case of Madhu Kishwar and Ors. v. State of Bihar and Ors. AIR 1996 SC 1864 . and In the case of State of Maharashtra v. Mlllnd andOrs. 2001(1) SCC 4 . 6. In the case of V.V. Giri v. D.S. Dora, reported In AIR 1959 SC 1318 , a Constitution Bench of the Supreme Court, while dealing with the question of the acceptance of a couple in the tribal community in the event of the tribal marrying a non-tribal and the recognition thus granted to such couple, observed as under : The caste status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry." 7. Undoubtedly, Article 342 of the Constitution of India relating to the subject of Scheduled Tribes gives the power to the President of India to notify and specify by public Notification the Tribes and tribal community, which for the purposes of the Constitution would be deemed to be Scheduled Tribes. It also gives the Parliament a power to delete or add to such list by making a law to that effect. Article 342 of the Constitution reads as under : "Scheduled Tribes--(1) The President may with respect to any State or Union territory, and where it ii a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes 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 Tribes specified in a Notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." 8. In the aforesaid legal backdrop and factual background, therefore, let us now analyse and examine the merits of the issues involved in this petition. In the aforesaid legal backdrop and factual background, therefore, let us now analyse and examine the merits of the issues involved in this petition. But first of all, let us see as to what is the precise nature of the grievance of the petitioner and the contention of Mr. P.K. Sinha, learned Senior Counsel appearing for the petitioner. According to Mr. P.K. Sinha, the petitioners grievance is that the impugned Circular tends to violate the rights of the tribal women and the tribal society as such and that if the impugned Notification is not quashed and set aside by us, the offsprings born out of the wed-lock of the marriage in-question would be unduly benefited by being granted the Certificates from the competent authorities as belonging to Scheduled Tribe in-question. 9. In this petition, we must very clearly observe, hold and state that we arc not concerned with the merits of the impugned Circular which in turn is based on the impugned communication of the Central Government because that point, according to us. is not justiciable. How and in what manner, the impugned Circular or the impugned communication operate is not either justiciable or is a matter of concern for us. The limited aspect with which we are concerned in this petition is as to whether these impugned communication in any manner offend Article 342 of the Constitution of India. If these Circular and communications in any manner offend Article 342, we would have no hesitation in declaring them as ultra vires the Constitution but, if these are in conformity with Article 342 and do not in any manner infringe upon or violate this Article, there is no reason or ground as to why we should in any manner interfere with the working of the system in so far as it is based upon the impugned Circular or the impugned Notifications. 10. Undoubtedly, in exercise of powers conferred upon him under Article 342(1) of the Constitution, the President has issued the Scheduled Tribes Order, 1950 and no addition or deletion from the List of Scheduled Tribes can be made except by the President himself by issuing a Notification in terms of clause (1) of Article 342 or by Parliament by making a law to that effect in terms of clause (2) of Article 342. The impugned Circular and the impugned communication issued by the State Government and the Central Government respectively do not amount to either deleting, or adding, or adding or varying or modifying the List of Scheduled Tribes at all. What these intend to do is to explain a situation where, in the event of a tribal woman marrying a non-tribal man (Upper Caste Hindu), the offsprings born put of such matrimonial alliance should be accorded the status of the tribe to which the woman belongs on the condition that the Society of the Tribes to which the woman belongs has recognised such matrimonial alliance and accepts the couple into their fold. This explanation does not amount to addition to, or deleting from the List of Tribes, their groups or their part in any manner. Actually, these notifications are based on the judgment of the Supreme Court in the case of V.V. Giri v. D.S. Dora (supra). The observations of the Supreme Court in V.V. Giri that the caste status of a person would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry, appear to have formed the basis and the foundation stone for issuance of the aforesaid Notification by the Central Government which was followed by the State Government subsequently. 11. From what we have discussed above, therefore, we have no doubt whatsoever that the impugned Circular or the impugned Notification do not in any way impinge upon the power of the President under clause (1), or the power of Parliament under clause (2) of Article 342 of the Constitution, because primarily these do not deal with any matter relating to addition to or deletion from the List of Scheduled Tribes. The Notifications merely can be called as explanatory, or at best clarificatory instruments to cater to an unforeseen fact situation not conceived in normal circumstances and, therefore, it can be safely held that they are outside the scope and ambit of Article 342 of the Constitution of India and on that basis cannot at all be termed as ultra vires the Constitution. 12. The two judgments referred to by Mr. Sinha in course of his submissions, in our considered view, are not applicable to the issues involved in this case because they do not touch upon the subject matter of this petition. 13. 12. The two judgments referred to by Mr. Sinha in course of his submissions, in our considered view, are not applicable to the issues involved in this case because they do not touch upon the subject matter of this petition. 13. Since, in this petition, we have not gone into in any aspect, except the one relating to the vires of the impugned Circular qua Article 342 of the Constitution, we refrain from making any comment upon the stand of the Government of Jharkhand as stated in its counter-affidavit particularly in paras 11 and 12 thereof. 14. For the aforesaid reasons, there fore, this petition is dismissed. No order as to costs. 15. Writ petition dismissed.