JUDGMENT R.N. BISWAL, J. — In this writ petition, the petitioner challenges the legality and propriety of the judgment dated 5.3.2009 passed by learned District Judge, Cuttack in Election Appeal No. 10 of 2007 reversing the judgment in part passed by learned Civil Judge (Jr. Division) Jajpur in Election Petition No. 5 of 2007. 2. The opp. party was the election petitioner and the peti¬tioner was the opp. party no.1 in the election petition No. 5 of 2007 of the court of learned Civil Judge (Jr. Division), Jajpur. As per the case of election petitioner, he himself and four others contested the election to the office of Sarpanch of Anyas¬ipur Gram Panchayat, reserved for O.B.C/S.E.B.C. ladies. The election was held on 17.2.2007, wherein the opp. party No.1 was declared elected. The election petition secured the 2nd highest votes in the fray. She filed the election petitioner under Section 31 of the Orissa Gram Panchayat Act, 1964 (hereinafter referred to as ‘G.P. Act’) on the ground that name of opp. party No.1 was Bebirani Sinha and her father’s name was Amulya Sinha in the voter list of the year 2002 as well as in her school certificate, and after marriage to Biswajit Baral, she changed her surname to ‘Baral’. But the couple are of different sub-castes. Opp. party No. 1 belongs to general caste. She did not seek for a declara¬tion from the competent authority to change her surname from ‘Sinha’ to ‘Baral’. So, the change of her surname is illegal. By practising fraud, she obtained the certificate as Bebirani Baral wife of Biswajit Baral and filed her nomination as an O.B.C. candidate. In the voter list of the year 2006 the name of Bebira¬ni Sinha was not available but the name of Bebirani Baral finds place there. The name of Bebirani Sinha having not been enshrined in the electoral roll, her nomination ought to have been rejected at the very thresh-hold of filing nomination. 3. It is the further case of election petitioner that opp. party No.1 applied for a caste certificate to Tahsildar, Bari giving rise to Misc. case No. 370 of 2007. In that application, she mentioned that she was ‘Kayasta’ by sub-caste but in the affidavit sworn to by her for the purpose of issuance of the caste certificate, she stated that she was ‘Khandayat’ by sub-caste. party No.1 applied for a caste certificate to Tahsildar, Bari giving rise to Misc. case No. 370 of 2007. In that application, she mentioned that she was ‘Kayasta’ by sub-caste but in the affidavit sworn to by her for the purpose of issuance of the caste certificate, she stated that she was ‘Khandayat’ by sub-caste. The Tahsildar, Bari, issued O.B.C. certificate in her favour holding her sub-caste as ‘Sagarpesha’ which being illegal, cannot be accepted. So, election petitioner prayed before the trial court to declare the election of the opp. party No.1 to the office of Sarpanch of Anyasipsur G.P. as void and further to declare that she herself had been elected to the said office. 4. As against this, opp. party no.1 in her objection stated that her father was not ‘Kayasta’ by sub-caste. In the R.O.Rs., starting from revisional settlement made in the year 1910 the caste of the family members of her paternal side has been recorded as ‘Sagarpesha’ which comes under S.E.B.C. list of the State and O.B.C. in the Central list. Since her father was not able to attend the major settlement operation, his caste has been wrongly recorded as ‘Kayasta’ in the R.O.Rs. After her marriage in the Baral family, her surname was changed to Baral. So filing of her nomination as Bebirani Baral would not disqualify her to contest the election. Moreover, before filing the nomination papers, she swore an affidavit to change her surname from ‘Si¬nha’ to ‘Baral’. Opp. party No.1 married in Baral family in the same village. So ‘Bebirani Sinha’ and ‘Bebirani Baral’ is one and the same person. As such, she has not practised any fraud, as alleged, in the election petition. Further, it is the case of opp. party No.1 that after thorough enquiry, the Tahsildar issued the O.B.C. certificate in her favour holding her caste as ‘Sagarpe¬sha’ which is under O.B.C./S.E.B.C. category. So, she prayed to dismiss the election petition. 5. On the basis of above pleadings of the parties, the trial court framed five issues. In order to prove her case elec¬tion petitioner examined 3 witnesses including herself as P.W.1 and produced some documents marked Exts. 1 to 7. Opp. Party No.1 also examined same number of witnesses including herself as O.P.W.No.1. 5. On the basis of above pleadings of the parties, the trial court framed five issues. In order to prove her case elec¬tion petitioner examined 3 witnesses including herself as P.W.1 and produced some documents marked Exts. 1 to 7. Opp. Party No.1 also examined same number of witnesses including herself as O.P.W.No.1. She filed some documents which were marked as Exts.A to L. After assessing the evidence on record, the trial court dismissed the election petition holding that opp. party No.1 belonged to S.E.B.C. category, vide judgment and order dated 8.10.2007 as stated earlier. 6. Being aggrieved with the said judgment and order, the election petitioner filed an appeal before learned District Judge, Cuttack, which was registered as Election Appeal No. 10 of 2007. 7. After hearing learned counsel for the parties, learned District Judge allowed the appeal and set aside the judgment of the trial court holding that Respondent No.1 therein was not eligible to take part in the election as she did not come under O.B.C./S.E.B.C. category and declared her election to the office of Sarpanch of Anyasipur Gram Panchayat as void. However, learned District Judge refused to declare the appellant as the returned candidate on the ground that there were altogether six candidates in the election fray and there was no material on record to hold that the appellant would have secured more than 50% of valid votes polled during election, if respondent No.1 had not been al¬lowed to take part in the election. Being aggrieved with the said judgment and order, Respondent No.1 has preferred the present writ petition. 8. Learned counsel for the petitioner submitted that opp. party (election petitioner) ought to have specifically pleaded in the election petition that the petitioner (opp. party in trial court) being a person belonging to ‘Sagarpesha’ caste, which is different from ‘Sagarpasha’ cannot come under O.B.C./S.E.B.C. category, but she has not done so. She did not even adduce any evidence to that effect. Hence, she ought not to have been al¬lowed to raise that point at the appellate stage, for the first time. In support of his submission, learned counsel for the petitioner relied on the decision L.R. Shivarama Gouda and others Vs. She did not even adduce any evidence to that effect. Hence, she ought not to have been al¬lowed to raise that point at the appellate stage, for the first time. In support of his submission, learned counsel for the petitioner relied on the decision L.R. Shivarama Gouda and others Vs. T.M. Chandrasekhar by LRs and others, (1999) I SCC 6, wherein the apex Court held that in absence of averment in the pleadings, it was not open to the appellant-election petitioner to adduce evidence to that effect. In the present case, the petitioner admitted in her objection to the election petition that her father’s family members were ‘Sagarpesha’ by caste. Out of five issues framed by the trial Court, issue No. 3 was, whether opp. party No. 1 (present petitioner) belonged to O.B.C./S.E.B.C. community. Evidence was led in that regard. So issue No. 3 covered the point that petitioner being Sagarpesha and not Sagarapasha by caste cannot come under O.B.C./S.E.B.C. community. Moreover, no evidence is required to be led to prove whether 'Sagarpesha' and ‘Sagarpa¬sha’ are one and same caste. 9. Learned counsel for the petitioner further submitted that though a person cannot claim to come under a par¬ticular category by claiming his caste as synonymous to another caste, which comes under SEBC, he can establish the fact relating to non-existence/identity of a particular caste and that his caste comes under another caste. In the Oriya dictionary, PURNA¬CHANDRA BHASAKOSHA, it is found that there is no such work like “Sagarapesha”, whereas, the word “Sagarpasha” finds place there¬in. As per the said dictionary “Sagarpasha” refers to of springs of concubines kept by Karanas and Bengalis, who colonized in Orissa. While granting caste certificate in favour of the peti¬tioner, the Tahasildar referred to the Notification of the Gov¬ernment wherein the caste “Sagarpasha” finds place under O.B.C. category, but erroneously he mentioned the caste of petitioner as “Sagarpesha” in the certificate which is nothing but clerical error. So, according to learned counsel for the petitioner it cannot be said that petitioner does not belong to O.B.C./S.E.B.C. community. 10. The petitioner in her pleadings stated that she was “Sagarapesha” by caste. The certificate issued in her favour also shows that her caste is “Sagarpesha”. But, in fact, the caste “Sagarpasha” has been notified by the Government to come under O.B.C./S.E.B.C. category. So, the Tahasildar ought not have issued an O.B.C. certificate to the petitioner. 10. The petitioner in her pleadings stated that she was “Sagarapesha” by caste. The certificate issued in her favour also shows that her caste is “Sagarpesha”. But, in fact, the caste “Sagarpasha” has been notified by the Government to come under O.B.C./S.E.B.C. category. So, the Tahasildar ought not have issued an O.B.C. certificate to the petitioner. As it appears, under the erroneous impression that “Sagarpesha” is synonymous to “Sagarapasha”, he issued the O.B.C. certificate in favour of the petitioner, which cannot be accepted as correct. It is not open to any authority, even to courts and tribunals to amend the list of O.B.C./S.E.B.C. In the decision, State of Maharashtra v. Milind and others, AIR 2001 SC 393 , the Apex Court held as fol¬lows:- “In the light of what is stated above, the following posi¬tions emerge:- 1. It is not at all permissible to hold any enquiry 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 communi¬ty is included in the general name even though it is not specifi¬cally mentioned in the concerned Entry 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 is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so spe¬cifically 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 the 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 the Parliament by law and by no other authority. 4. It is not open to State Governments or Courts or tribu¬nals 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. 4. It is not open to State Governments or Courts or tribu¬nals 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. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patra, (1971) 1 SCR 804: ( AIR 1971 SC 2533 ) and Dina v. Narayan Singh, (1968) 38 ELR 212, did not lay down law correctly in stating that the enquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no enquiry at all is permissible and no evidence can be let in, in the matter.” Again in the case of Prabhudev Mallikarjunaiah v. Ramachan¬dra Veerappa and another, AIR 1996 Supreme Court 1962, the Apex Court held:- “It is settled law that the courts cannot give any declaration that the status with synonymous names of castes claimed by the party is conformable to the names specified in the Presidential Notification issued under Article 341 of the Consti¬tution.” 11. So, evidence cannot be led to show that there is no caste after the name “Sagarpesha” and “Sagarpesha” in fact, is “Sagarpasha”. This Court cannot also declare that Sagarpesha is synonymous to Sagarpasha. 12. So, in view of the analysis made above, there is no illegality or impropriety in the order passed by the appellate court, and, as such, the writ petition stands dismissed. No cost. Petition dismissed.