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2023 DIGILAW 932 (RAJ)

Akhil Bhartiya Nayak Mahasabha Marwar, Pratapgarh v. Union of India, through the Secretary, New Delhi

2023-04-26

PRAVEER BHATNAGAR, VIJAY BISHNOI

body2023
JUDGMENT : VIJAY BISHNOI, J. 1. This writ petition is filed by petitioner-Mahasabha, claiming itself to be a registered society, in the public interest. It is claimed that the petitioner is working for the rights of members of ‘Nayak’ community. The following reliefs have been sought by the petitioner: “10. Reliefs as Prayed: For the facts and circumstances as stated above, the petitioner-Society herein most respectfully submits that this Hon'ble Court may graciously be pleased to: (A) By an appropriate writ, orders or directions the respondent State may kindly be directed to correct/update/rectify the updation of the Hindi Version of Nayaka caste as ‘Nayak’ on the e-mitra website (http:www.emitra.gov.in) or any other Government website. (B) By an appropriate writ, orders or directions, emitra website (http://www.emitra.gov.in) or any other Government website may kindly be updated as per the version ‘Nayak’) which is notified in the Scheduled Tribe List in the Act of 1976. (C) By an appropriate writ, orders Or directions, the respondents State may kindly be directed to issue Scheduled Tribe certificate to members of the Nayaka community while considering the Hindi Version ‘Nayak’ as correct version for the Nayaka caste. (D) By an appropriate writ, order or direction, any order or notification passed by the respondent Government of Rajasthan in violation of the Schedule II of the Act of 1976 by which any modification/updation/correction has been made by the respondent Government of Rajasthan without adhering to the Article 342 of the Constitution of India as well as the modalities approved by the Government of India may kindly be quashed and set aside. (E) Any other appropriate writ, orders directions which this Hon'ble court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner-Society. (F) Writ petition filed by the petitioner-Society may kindly be allowed with costs.” 2. It is stated in the petition that in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (hereinafter to be referred as ‘the Act of 1976’) dated 20.09.1976 (in English version) ‘Nayak’ community has been notified in Scheduled Caste List at serial No. 57, whereas the ‘Nayaka’ community has been notified in Scheduled Tribe List at serial No. 10. It is stated in the petition that in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (hereinafter to be referred as ‘the Act of 1976’) dated 20.09.1976 (in English version) ‘Nayak’ community has been notified in Scheduled Caste List at serial No. 57, whereas the ‘Nayaka’ community has been notified in Scheduled Tribe List at serial No. 10. It is further mentioned that in Hindi version of Scheduled Caste and Scheduled Tribe List ‘Nayak’ community has been notified in the Scheduled Caste List at serial No. 57 and again ‘Nayak’ community has been notified in the Scheduled Tribe List at Serial No. 10. 3. It is mentioned in the petition that the grievance of the petitioner is that the members of the society and other individuals of the ‘Nayak’ community, living throughout the State of Rajasthan, are the members of the Scheduled Tribes category of the State of Rajasthan and were previously being issued Scheduled Tribes Caste certificate by the concerning authorities but subsequently, due to difference in pronouncing and writing the caste in English and Hindi, the members of the ‘Nayak’ community are now being issued Scheduled Caste certificate instead of Scheduled Tribes certificate. 4. It is contended that the Tehsildar (Revenue), Bikaner made a communication with the Department of Information Technology and Communication, Government of Rajasthan on 01.10.2012 stating that the ‘Nayak’ Caste in Bikaner District comes in the ambit of Scheduled Caste List, but at serial No. 10 of website of Social Welfare Department, the ‘Nayak’ Caste is shown as Scheduled Tribe Category. The Tehsildar referring to the communication dated 27/28.01.2009 made by the Ministry of Tribal Affairs has stated that the Hindi version of ‘Nayaka’ should be ‘Nayaka’ instead of ‘Nayak’ which falls under the Scheduled Tribe Category, whereas the ‘Nayak’ Caste falls under the Scheduled Caste category, therefore, the website of Social Welfare Department be corrected, so that wrong caste certificates are not issued to the members of ‘Nayak’ community. It is claimed that acting upon the said communication of the Tehsildar (Revenue), the respondent-Department of Social Justice and Empowerment has modified the entries and now the online caste certificates are being issued to the members of the ‘Nayak’ community treating them as Scheduled Caste and not as Scheduled Tribe. 5. It is claimed that acting upon the said communication of the Tehsildar (Revenue), the respondent-Department of Social Justice and Empowerment has modified the entries and now the online caste certificates are being issued to the members of the ‘Nayak’ community treating them as Scheduled Caste and not as Scheduled Tribe. 5. Learned counsel for the petitioner has argued that the change in the website of the Government was made on the basis of a communication received by the Secretary, Department of Social Justice and Empowerment of Government of Rajasthan by the Ministry of Tribal Affairs of Government of India dated 27/28.01.2009. It is submitted that vide said communication, no modification of spelling of entries in the list of STs of Rajasthan was made but only a clarification was issued, however, without there being any modification in the notification of the list of Scheduled Tribe of Rajasthan, the State Government cannot, on its own, change the status of ‘Nayak’ community from the Scheduled Tribe to Scheduled Caste. 6. It is argued by learned counsel for the petitioner that it is settled that State has no power to amend the presidential orders and the list of Scheduled Caste or Scheduled Tribe can only be changed by adhering the procedure laid down under Article 342 of the Constitution of India. Learned counsel for the petitioner has placed reliance on decisions of Hon’ble Supreme Court rendered in State of Maharashtra vs. Milind and Others, (2001) SCC 4 and Dr. Jaishri Laxmanrao Patil vs. Chief Minister and Others, (2021) 8 SCC 1 . Learned counsel for the petitioner has, therefore, prayed that this writ petition may kindly be allowed and the reliefs sought for may be granted in favour of the petitioner. 7. Having heard learned counsel for the petitioner and having gone through the material available on record, we found that the controversy raised by the petitioner in this writ petition is already set at rest by a Coordinate Bench of this Court. 8. A charitable society registered under the Societies Registration Act viz. 7. Having heard learned counsel for the petitioner and having gone through the material available on record, we found that the controversy raised by the petitioner in this writ petition is already set at rest by a Coordinate Bench of this Court. 8. A charitable society registered under the Societies Registration Act viz. Sant Ladhunath Nayak Sewa Sansthan, Sikar filed D.B. Civil Writ Petition No. 496/2013 before this Court in public interest seeking a direction for the State to issue Scheduled Tribe Certificates to the members of the ‘Nayak’ community of the State of Rajasthan with a further prayer that the respondents be directed to delete the term ‘Nayak’ from serial No. 57 of Part XIV of Rajasthan of Schedule-1 of the Constitution (Scheduled Castes) Order, 1950 as incorporated on 20.09.1976, which came into force w.e.f. 22.07.1977 by declaring the same to be violative of Articles 341 and 342 of the Constitution of India. The Division Bench of this Court vide judgment dated 16.11.2018 has dismissed the said writ petition while making the following observations: “Adverting now back to the present case, we find from the record that the State Government wrote letters on 14.08.2008 and 01.09.2008 to the Central Government seeking clarification owing to the difference in the English and Hindi version with regard to ‘Nayak’ community. Similar letters were also written with regard to ‘Koli’ community on 23.10.2008 and 06.01.2009. The Ministry of Tribal Affairs, Government of India, Shastri Bhawan, New Delhi, has issued a clarificatory letter dated 27th/28th January, 2009, copy of which has been placed on the record of the file. It was clarified that as per the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 dated 20.09.1976 (in English) and it’s Hindi version notified on 01.10.1979, the existing entries relating to Scheduled Castes & Scheduled Tribes read as under: “Scheduled Castes: 37. Koli......./Koli....... “57.......Nayak/57.......Nayak” Scheduled Tribes: “8. Koli Dhor......./Koli, Dhor.......” “10.......Nayaka......./10.......Nayak.......” 2. It appears that community names given in Hindi as “Nayak” at S. No. 10 and “Koli, Dhor” at S. No. 8 while correctly notified in the English version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 dated 20.09.1976 as “10....... Nayaka.......” and “8. Koli Dhor.......” have been wrongly spelt in Part 13 relating to the list of Scheduled Tribes in Rajasthan in the Hindi version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 notified on 1.10.79. Nayaka.......” and “8. Koli Dhor.......” have been wrongly spelt in Part 13 relating to the list of Scheduled Tribes in Rajasthan in the Hindi version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 notified on 1.10.79. The existing entry in relation to Scheduled Tribes in Rajasthan would need to be modified as: “8. Koli Dhor.......” “10.......Nayaka..........” 3. Article 348(1)(b) of the Constitution under Chapter III provides as “the authoritative text-(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State shall be in the English language.” Hence, authoritative text of the notification namely the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 may be taken as the one which is in English language, which has been issued on 20.09.1976. In view of the above, the State Government of Rajasthan is requested to issue Scheduled Tribe’s Certificate to the genuine Scheduled Tribe persons only in terms of Article 348 of the Constitution. (ii) Further, as the State Government of Rajasthan has also pointed out other typographical errors in its aforecited letters, it is further requested that a self contained proposal along-with specific recommendations required under Article 342 of the Constitution as well as the modalities approved by the Government on 15.06.1999 for modifications in the Hindi list of Scheduled Tribes of the State, be sent to this Ministry for consideration, for amending the Hindi version of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 dated 01.10.1979.” Therefore, whether or not the respondents have wrongly pleaded before this Court that inclusion of ‘Nayak’ in the Scheduled Castes list, which in its earlier phase was confined to certain parts of the State and later included in the category of the Scheduled Castes for whole of the State, consequent upon acceptance of the recommendations of the Kaka Kalekar Backward Class Commission report, the consequence remains the same that the ‘Nayak’ community stands included in the list of the Scheduled Castes along-side ‘Thori’ in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, which was notified on 20.09.1976. The confusion that was created owing to the typographical or printing error in the Hindi version of the list pertaining to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 has been clarified by the Government of India vide letter dated 27th/28th January, 2009 (Annexure R/10/6). ................. ................. In view of the authoritative pronouncement of law by the Supreme Court in Milind and Others, supra, we are inclined to hold that this court is not in a position to declare that ‘Nayak’ community has been wrongly included in the list of Scheduled Castes pertaining to the State of Rajasthan in the Presidential Order, as modified by the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, and should have been included in the list of Scheduled Tribes. Whatever may have been the reasons for inclusion of ‘Nayak’ alongside ‘Thori’ in the list of Scheduled Caste category, this court cannot go into the correctness of the same. As far as the mention of ‘Nayak’ in the Hindi version of the list pertaining to the Scheduled Tribe at serial no. 10 of Hindi version appended to the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, it has been authoritatively clarified by the Government of India as would be evident from the letter dated 27th/28th January, 2009 of the Ministry of Tribal Affairs, Government of India, Shastri Bhawan, New Delhi. The Article 348(1)(b) of the Constitution under Chapter XXX provides as “the authoritative text-(ii) of all Acts passed by the Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State and (iii) of all orders, rules, regulations and byelaws issued under this Constitution or under any law made by the Parliament or the Legislature of a State shall be in the English version.” Therein ‘Nayak’ has been completely spelt and included in the list of Scheduled Castes, and it has to be taken as the correct version.” 9. It is also to be noticed that Special Leave Petition (Civil) Diary No. 14842/2019 filed on behalf of the petitioners against the order of this Court dated 27.09.2019 passed in D.B. Civil Writ Petition No. 496/2013 also came to be dismissed by the Hon’ble Supreme Court vide judgment dated 27.09.2019. 10. In view of the above, we do not find any merit in this writ petition and the same is, therefore, dismissed.