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2008 DIGILAW 888 (PAT)

Sunil Kumar Sah v. State of Bihar

2008-07-08

body2008
ORDER Heard the learned counsel for the petitioners and the learned Counsel for the State in both the writ petitions. 2. The petitioners in both the applications are applicants for the post of Prakhand Shikshak under the Bihar Panchayat Primary Teachers (Appointment and Service Condition) Rules, 2006. They have been denied consideration under the reserved category of scheduled tribe on the ground that their status as "Gonds" from the district of Saran did not qualify them as scheduled tribe. 3. Learned Counsel submits that they are in possession of the requisite caste certificate of their being a scheduled tribe issued by the appropriate authority of the State Government on 7.8.1991 and 25.3.1991 respectively followed by the individual certificates dated 13.12.2007 of the District Magistrate Saran at Chapra certifying their status as scheduled tribe belonging to "Gond". The certificates have not been annulled till date. Reliance is further placed on a Bench decision of this Court in CWJC No. 1853 of 1987 to urge that a Single Bench of this Court noticing the resolution of the State of Bihar dated 14.7.1995 had accorded the status of scheduled tribe belonging to "Gond" tribe to two persons in the district of Saran from which the petitioners come and on which the present controversy arises. He additionally urges that aforesaid writ petition viz CWJC No. 1853 of 1987 which fell for consideration before a Bench was preferred by the relatives of the petitioner in CWJC No. 1619 of 2008 and by the father of the petitioner in CWJC No. 1628 of 2008. He places reliance on another Bench decision of this Court reported in 2002 (3) PLJR 393 , Sumit Anand Vs. State of Bihar & Ors., which in turn places reliance on another Division Bench decision to submit that once scheduled tribe status of their tribe given to their predecessor has not been called into question and they continued with the same the benefit could not be denied to the present petitioners. Learned Counsel lastly places for perusal before this Court another Government notification dated 28.2.2007 bearing Memo no. 695 issued under the signature of Deputy Secretary of the State Government in the Department of Personnel and Administrative Reforms resolving the controversy with regard to Gour, Gonr and holding that it was only "Gond" which were entitled to the benefits as a scheduled tribe. 4. 695 issued under the signature of Deputy Secretary of the State Government in the Department of Personnel and Administrative Reforms resolving the controversy with regard to Gour, Gonr and holding that it was only "Gond" which were entitled to the benefits as a scheduled tribe. 4. The judgment reported in 2002(3) PLJR 393 was assailed before the Supreme Court in Civil Appeal No. 8014 of 2003 and which was dismissed. 5. Learned Counsel for the State very strenuously sought to persuade this Court that originally by a presidential notification under Article 342 of the Constitution of India bearing S.R.O. No. 2477 dated 29.10.1956 "Gond" in the entire State of Bihar, then not reorganized were declared as scheduled tribe. That "Gonds" are a scheduled tribe to be found in the Chotanagpur area, an erstwhile part of Bihar, now in the State of Jharkhand. 6. This has been noticed in a resolution of the Department of Personnel and Administrative Reforms dated 19.2.1980 by which 'Gonds' in the district of Saran and Rohtas were decided to be given the benefits of a scheduled tribe. This was on the premise that the State Government was not competent to make any changes in the presidential notification made under Article 342. 7. If that be the correct position, as of today "Gonds" are a scheduled tribe in the presidential notification for the entire State of Bihar as it stands today. The State Government resolution of 1980 quite rightly observes itself that it is not competent to make any change in the presidential notification. So long the presidential notification stands, this Court is satisfied that the writ petition cannot be thrown out and the petitioners are entitled to the relief prayed for by them both in the light of the judgment reported in 2002(3) PLJR 393 and CWJC No. 1853 of 1987. 8. The writ applications are therefore allowed and the case of the petitioners are required to be considered as scheduled tribe belonging to the tribe Gond. It shall be the liberty of the State Government to take appropriate action for modification of the Presidential notification in accordance with law. Till such time the presidential notification holds the field.