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2002 DIGILAW 281 (MP)

Raj Kumar Tamrakar v. State of M. P.

2002-03-07

BHAWANI SINGH, K.K.LAHOTI

body2002
Judgment ( 1. ) PETITIONER by these two petitions, has invoked the jurisdiction of this Court to decide the question whether Tamrakar sub-tribe is included in the list of Scheduled Tribes issued by the President of India in Entry 20 of the list and for this purpose to make a roving and deep examination of the material and to declare that Tamrakar should be treated as Chhatri. ( 2. ) WRIT Petition No. 2656/1995 filed by petitioner Raj Kumar Tamrakar challenging the order of Madhya Pradesh State Public Service Commission, Indore, in which petitioner has been debarred from appearing in the future examination because of his serious misconduct of filing forged certificate of Scheduled Tribes. In this case, the petitioner has prayed that Tamrakar be declared as Chhatri Scheduled Tribe as notified by 1950 Order and he may be permitted to enjoy all the privileges and concessions available to member of Scheduled Tribe. ( 3. ) WRIT Petition No. 2184/1998 has been filed by the same petitioner in which order passed by Madhya Pradesh State Administrative Tribunal, Jabalpur in O. A. No. 2428 of 1995, dated 5-5-1998 in which his termination order was challenged on the same ground that he being Tamrakar be declared as sub-tribe of Chhatri Tribe claiming that Chhatri is the genus of which Tamrakar is specie. The learned Counsel for the petitioner submits that this Court should exercise its writ jurisdiction in the matter and after going through all the material and documents filed by the petitioner, the above said declaration as prayed by him be granted. ( 4. ) IT is not in dispute that the Constitutional Scheduled Tribe Order Part-VII-Madhya Pradesh in which Chhatri has been included in Scheduled Tribe in Madhya Pradesh did not include Tamrakar sub-caste of Chhatri. Recently, the Apex Court has considered the powers of the Court for dealing with such matters. The Apex Court in the case of Slate of Manarashtra v. Milind and Ors. , reported in 2000 ( 1) M. P. H. T. 402 - (2001) 1 SCC 4 held : -- "courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste, a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342. . . . . . . . . . . . . . . . . . . Allowing the State Governments or Courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential order when it is not so specifically included; may lead to problems. In order to gain advantage of reservations for the purpose of Article 15 (4) or 16 (4) several persons have been coming forward claiming to be covered by Presidential orders issued under Articles 341 and 342. This apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the Courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one entry or the other, although they arc not expressly and specifically included. A Court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included. The Apex Court has further held :- (1) It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950. (2) The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community or synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. (3) A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. (3) A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by Parliament by law and by no other authority. (4) It is not open to State Governments or Courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342. " ( 5. ) WITH background aforesaid, this Court cannot exercise jurisdiction to declare that Tamrakar is a Scheduled Tribe in Entry 20 of Constitutional (Scheduled Tribes) Orders which reads as under :-- "20. Kawar, Kanwar, Kaur, Cherwa, Rathia, Tanwar, Chhatri. " ( 6. ) IN view of this, both petitions are devoid of any substance and accordingly dismissed with no order as to costs.