SUNIL KUMAR RAI & ORS. versus THE STATE OF BIHAR & ORS.

SUNIL KUMAR RAI & ORS.

THE STATE OF BIHAR & ORS.

(Writ Petition (Civil) No. 1052 of 2021)

FEBRUARY 21, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Social status certificate: Notification dated 23.08.2016 issuedby Government of Bihar – In terms of said Notification, approvalgiven to issue Scheduled Tribe certificate to Lohara (Lohar)community – Writ petition filed under Art.32 praying quashment ofsaid Notification and also seeking direction to the Government topay compensation for illegal notification which led to FIR underthe provisions of SC and ST Act, 1989 against the petitioners –Held: It has been held in catena of decisions that Lohars are notmembers of the Scheduled Tribe and they are members of the OBCs– ‘Lohar’ is not same as ‘Lohara’ – The implication of Notificationdated 23.08.2016 is deep and it affects the rights of the citizens inthe most adverse manner – person who is Lohar on being treatedas Scheduled Tribe would be entitled to invoke the protection of1989 Act – The fact that inclusion of persons otherwise disentitledin the category of Scheduled Tribes would directly constitute anunjustifiable inroad into the rights of those members of the ScheduledTribe in the matter of public employment and in other respects –Therefore, there is absolutely no basis for respondent-state to haveissued the impugned notification – The quashing of the impugnedNotification will be qua ‘Lohar’ community and the Lohara willcontinue to get the benefit vouchsafed for them under thePresidential Order as amended by the Acts – State government topay Rs.5,00,000/- as costs – Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989.

Constitution of India: Art.32 – Delay in approaching Court –Delay by itself cannot be used as weapon to Veto an action underArt.32 when violation of fundamental rights is clearly at stake.

1112SUPREME COURT REPORTS

AAllowing the writ petition, the Court

HELD: 1.Article 32 of the Constitution provides for aFundamental Right to approach the Supreme Court forenforcement of the Fundamental Rights. The founding fatherscontemplated that the very right to approach this Court whenBthere is violation of Fundamental Rights, should be declared asbeyond the reach of Parliament and, therefore, it is as part ofjudicial review that the right under Article 32 has been put inplace and invoked from time to time. That in given case, theCourt may refuse to entertain petition under Article 32 of theConstitution is solely part of self-restraint which is exercisedCby the Court having regard to various considerations which aregermane to the interest of justice as also the appropriateness ofthe Court to interfere in particular case. The right under Article32 of the Constitution remains Fundamental Right and it isalways open to person complaining of violation of FundamentalDRights to approach this Court. This is, no doubt, subject to thepower of the Court to relegate the party to other proceedings.[Para 7][1118-B-D]

2. Lohar is not same as Lohara. Including Lohars alongside‘Lohara’ is clearly illegal and arbitrary. The English text whichEhas been held to be the authoritative text and the decisions ofthis Court have been ignored. The approach which at the veryminimum betrays total non-application of mind which, in turn,leads to an inference that it has been arrived in an arbitrary manneris disapproved. Thus, it attracts the wrath of Article 14 of theConstitution. This, in turn, justifies the approach of the petitionersFunder Article 32 of the Constitution. [Para 25][1129-D-E]3. The implications of this Notification are deep and it affectsthe rights of the citizens in the most adverse manner. The impactof the Notification is also to be gauged in the context of the 1989Act as it is with reference to the Presidential Notification underGArticle 342 that prosecution under the 1989 Act is also to bejudged. In the other words, person who is Lohar on being treatedas Scheduled Tribe would be entitled to invoke the protection of

1989 Act. That apart, it directly impinges upon the rights of thepersons who stand in the shoes of the accused. The provisions ofthe 1989 Act have put stringent conditions in the matter of grantof bail. Anticipatory bail is not even permitted under Section 438of the Code of Criminal Procedure, 1973 vide Sections 18 and18A of the 1989 Act. Therefore, there is absolutely no basis forrespondent-State to have issued the impugned Notification. Thelimitation on the power of the Executive in this regard has beendeclared in catena of cases. The approach has been very casualand it has created situation for which the State is solelyresponsible, even when it was entirely avoidable if only therespondent had taken proper care and applied its mind. [Paras26, 28][1129-F-H; 1130-B-C]

Assam Sanmilita Mahasangha & Ors. v. Union of India& Ors. (2015) 3 SCC 1 : [2014] 14 SCR 744; PrabhatKumar Sharma v. Union Public Service Commission AndOthers (2006) 10 SCC 587 : [2006] 7 Suppl. SCR 522;Nityanand Sharma and Another v. State of Bihar andOrs. (1996) 3 SCC 576 : [1996] 2 SCR 1; VinayPrakash and Others v. State of Bihar and Others,1997(3) SCC 406 : [1997] 2 SCR 97; The State ofMaharashtra & Anr. v. Keshao Vishwanath Sonone &Anr. (2020) 14 SCALE 456; Prathvi Raj Chauhan v.Union of India and Others (2020) 4 SCC 727; NilabatiBehera @ Lalita Behera v. State of Orissa (1993) 2 SCC746 : [1993] 2 SCR 581 – relied on.

1114SUPREME COURT REPORTS

ACIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1052 of 2021.

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

S. K. Rai, R. K. Ranjan, V. K. Sinha, Sandeep, Ms. Suchita Dixit,Navin Kumar, Ms. Kumari Bandana for M/s Ranjan and Company, Advs.Bfor the Petitioners.

Ranjit Kumar, Sr. Adv., Azmat Hayat Amanullah, Advs. for theRespondents.

The Judgment of the Court was delivered byCK. M. JOSEPH, J.

1. This is writ petition maintained under Article 32 of theConstitution of India. The petitioners, four in number, seek reliefs whichread as follows:-D“AIssue appropriate writ, order or direction in the nature ofcertiorari quashing the notification number 689 of 2016 dated23.08.2016 issued by Respondent No.1 in Bihar Gazette;

BIssue an appropriate writ, order or direction, directing theGovernment of Bihar to pay compensation to the petitionersEdue to illegal, unconstitutional notification of government ofBihar on the basis of FIR registered under wrong provisionof SC and ST Act.

COr pass any other order or orders as this Hon’ble Courtmay deem fit and proper in the facts and circumstances ofFthe above said case.”

2. The impugned notification is dated 23.08.2016, which reads asfollows:-

“BIHAR GAZETTE

GExtraordinary Marks

Published by Government of Bihar

1 Bhadra 1938 (Sh)

No Patna 689, Patna, Tuesday, 23 August 2016

General Publication DepartmentH

From

Rajender Ram,

Chief Secretary of Government,

To all Chief Secretary of all departments, all divisional Commissioner,all District Magistrate, the Secretary of Bihar Public ServiceCommission, Patna, Secretary of Bihar Staff Selection Commission,the Secretary Central Secretary Board (Constable recruitment,Patna, the controller of Examination Bihar Combined EntranceCompetitive, Examination Board, Patna, Registrar, office ofadvocate General Patna High Court, and Secretary of Bihar StateElection Authority, Patna)

Patna- 15 dated 08/August/2016

Subject:- In regard to issue Scheduled Tribe Certificate and otherfacility to Lohara (Lohar) community.

Sir,

1 As per order in the above said subject it is stated that Lohara,Lohra (Lohar, Lohara) was mentioned at Item No.22 in the list ofthe Constitution Scheduled Caste and Scheduled Tribe orderamendment Act 1976 which has been listed at item No.21 asLohara, Lohra by the Constitution Scheduled Tribe orderAmendment Act, 2006 (Act No.48 of 2006).

2 In this regard, it is worth mentioning that the ConstitutionScheduled Caste Scheduled Tribe orders amendment Act 2006No.48 of 2006 has been repealed by the Repealing and AmendmentAct 2016 (Act No.23 of 2016) Parliament. Hence in the abovestated situation and in the light of the constitution Scheduled Casteand Scheduled Tribe Order amendment Act 1976 (Act No.108/1976) approval is given to issue caste of certificate of ScheduledTribe Certificate and other facility to Lohara (Lohar) Community.

FaithfullyRajender RamAdditional Secretary of Government”(Emphasis supplied)

1116SUPREME COURT REPORTS

A3. The case of the petitioners, in nutshell, is as follows:-

The Lohar community in Bihar is not entitled to be treated asmembers of the Scheduled Tribe. The matter relating to Scheduled Tribesis governed by Article 342 of the Constitution. Invoking Article 342, it isthe case of the petitioners that the original Order was issued by theBPresident in 1950. Thereunder Lohars were not treated as members ofthe Scheduled Tribe. In fact, they were contemplated as members ofOther Backward Class (for short ‘OBC’). This position continued fromthe year 1970 till 1976 when an amendment took place at the hands ofParliament. The position, however, as to Lohars not being entitled to betreated as Scheduled Tribe did not undergo any transformation.CThereafter, in the year 2006, Act No.48 of 2006 came to provide asfollows:-

“An Act further to amend the Constitution (Scheduled Tribes)Order, 1950 to modify the list of Scheduled tribes in the State ofBihar.DBE it enacted by Parliament in the Fifty-seventh Year of theRepublic of India as follows: -

1. This Act may be called the Constitution (Scheduled Tribe) ShortTitle Order Amendment Act, 2006.

E2. The Gazette of India Extraordinary

Part II-Sec 1]

Amendment of the Constitution (Scheduled Tribes) Order, 1950,as amended by the Scheduled Castes and Scheduled Tribes Order(Amendment) Act, 1976.

2. In the Constitution (Scheduled Tribes) Order, 1950, as amendedby the Scheduled Castes and Scheduled Tribes Order(Amendment) Act, 1976, in the Schedule, in Part III relating toBihar, for item 22 (Since renumbered as item 21), as appearing inthe Hindi version of the said Act, the following shall be substituted,Gnamely: -

“21. Lohara, Lohra”.

4. Still, thereafter, Parliament came to repeal the justaforementioned enactment by Act 23 of 2016. Purporting to drawHinspiration from the said enactment, the respondent-State has issued the

impugned Notification. The result of the Notification is not far to seek asthe last sentence of the said Notification lays bare the intent, purport andobject of the Respondent-State. In other words, seeking shelter underthe amending Act of 2016, approval was given to issue Scheduled TribeCertificate and other facilities to Loharcommunity.

5. It is the case of the petitioners that this is per se unconstitutionaland illegal. It occasions breach of Articles 14 and 21 of the Constitution.

What is more, relying upon the same, proceedings have been initiatedagainst the petitioners under the provisions of the Scheduled Castes andScheduled Tribes (Preventions of Atrocities Act), 1989 (hereinafterreferred to as ‘the 1989 Act’). Petitioners were constrained to seekanticipatory bail. Petitioner Nos.2 and 4 were unsuccessful. In fact, theyhad to undergo custody and all this is solely on account of the fact thatthe respondent-State has proceeded to pass the impugned Notificationwhich has come as handle in the hands of persons who are not entitledto the protection under the 1989 Act, to use the enactment against thepetitioners.This, in turn, as already noticed has occasioned grave injusticeto the petitioners, including incarceration in jails. In fact, learned counselfor the petitioners Mr. S. K. Rai would point out that there are thousandsof FIRs filed in the State of Bihar invoking the impugned Notificationresulting in deprivation of the liberty of several persons. The case of thepetitioners further is that the respondent-State had the audacity todisregard the declaration of law made by this Court, not once, but onthree occasions. We shall refer to those decisions and it would sufficefor our purposes to reiterate that the petitioners, in these circumstances,have approached this Court pointing out that the circumstances are suchthat it warranted the petitioners to directly approach this Court underArticle 32 instead of approaching the High Court.

6. Per-contra, Mr. Ranjeet Kumar, learned senior counsel assistedby Mr. Azmat Hayat Amanullah, learned counsel appearing for the Stateof Bihar, would point out that the petitioners should have approached theHigh Court. What is at stake, according to the learned senior counsel, issome ‘personal enmity’. It is also pointed out that there is delay ofabout five years in seeking protection of this Court under Article 32 ofthe Constitution. The petitioners have challenged the impugnedNotification of the year 2016 after five years. He would submit that thepetitioners were refused protection under Section 438 of the Code ofCriminal Procedure (for short ‘Cr.P.C.’). Petitioners ought to have worked

Aout their remedies as against those orders and it does not lie in theirmouth to seek protection afforded under Article 32 of the Constitution inthe facts of this case.

FINDINGS

B7. Article 32 of the Constitution provides for Fundamental Rightto approach the Supreme Court for enforcement of the FundamentalRights. The founding fathers contemplated that the very right to approachthis Court when there is violation of Fundamental Rights, should bedeclared as beyond the reach of Parliament and, therefore, it is as partof judicial review that the right under Article 32 has been put in placeCand invoked from time to time.That in given case, the Court may refuseto entertain petition under Article 32 of the Constitution is solely partof self-restraint which is exercised by the Court having regard to variousconsiderations which are germane to the interest of justice as also theappropriateness of the Court to interfere in particular case. The rightDunder Article 32 of the Constitution remains Fundamental Right and itis always open to person complaining of violation of Fundamental Rightsto approach this Court. This is, no doubt, subject to the power of theCourt to relegate the party to other proceedings.8. At the heart of the Constitution lies certain principles whichEhave, in fact, been recognised as part of the basic structure. Article 14of the Constitution proclaims right to equality. The right against unfairState action is part of Article 14. Unequals being treated equally is tabooedunder Article 14 of the Constitution. person entitled to be treated as amember of Scheduled Tribe under Article 342, cannot be treated on parwith person who is brought in by an incompetent Body, viz., the StateFin the manner done. Article 21 of the Constitution again is the fountainhead of many rights which are part of the grand mandate which hasbeen from time to time unravelled by this Court giving rise to the theoryof unenumerated rights under the Constitution. While liberty is dynamicconcept capable of encompassing within it variety of Rights, theGirreducible minimum and at the very core of liberty, is freedom fromunjustifiable custody.

With these prefatory remarks, we may pass on to consider thecomplaint of the petitioners and the response of the respondent-State onthe same.H

9. We may take up the first preliminary objection by the State,namely, that the petitioners have approached this Court with considerabledelay. The impugned Notification is issued in August, 2016. personcannotbe said to be aggrieved merely upon the issuance of an instrumentor of law by itself. In fact, the Court may refuse to examine the legalityor the validity of law or order on the basis that he may have no locusstandi or that he is not an aggrieved person. No doubt, the Courts haverecognized challenge to even legislation at the hands of public interestlitigant. However, we may only indicate, ordinarily, the Court may insiston cause of action and therefore, person must be an aggrieved partyto maintain challenge. We must not be oblivious to the fact that basedon the Notification, it appears that FIRs came to be lodged by personsclaiming to be members of the Scheduled Tribe community and seekingto invoke the 1989 Act. The FIRs lodged in the year 2020 occasionedthe petitioners to approach Courts seeking protection under Section 438of the Cr.P.C. Two of the petitioners have not secured such protection.Petitioner No.1, it appears was not arrested. But even assuming for amoment, that the petitioners have come with some delay, we findreassurance from the opinion of this Court in the judgment reported inAssam Sanmilita Mahasangha & Ors. v. Union of India & Ors.(2015) 3 SCC1, wherein this Court has inter alia held as follows:-

32. “…..Further, in Olga Tellis v. Bombay Municipal Corpn., ithas now been conclusively held that all fundamental rights cannotbe waived (at para 29). Given these important developments inthe law, the time has come for this Court to say that at least whenit comes to violations of the fundamental right to life and personalliberty, delay or laches by itself without more would not besufficient to shut the doors of the court on any petitioner.”

Therefore, we do not think we should be detained by theobjection.We would think that delay by itself cannot be used as weaponto Veto an action under Article 32 when violation of Fundamental Rightsis clearly at stake.

10. Equally unimpressive is the further argument of the learnedsenior counsel for the respondent-State that what is at stake is the caseof personal feud or personal enmity. This Court is not concerned withthe merits of the case as such. What this Court is concerned is with thelegal and constitutional aspects arising from the challenge to the impugned

ANotification in question. Once this Court is convinced that the Notificationhas no legs to stand on and must collapse,it becomes the Court’s duty togrant relief.

11. Another objection which is raised by the learned senior counselfor the State is that this is case again which should engage the attentionBof the High Court and this Court should not interfere under Article 32.We have already dealt with the true purport of Article 32. We do notthink we should elaborate more on this aspect. We take the view thatthis is clearly an appropriate case for reasons to follow where this Courtshould consider the challenge to the impugned Notification.

C12. Undoubtedly, the Constitution of India in Article 342 providesfor the manner in which the members of the Scheduled Tribe are to berecognised. Article 342 provides for the power with the President afterconsultation with the State to specify the Tribes which are to be treatedas Scheduled Tribes in that State or the Union Territory as the case maybe. Parliament is empowered in sub-Article (2) to include or excludeDfrom the list. This is the scheme.

13. The first decision of this Court which chronicles the annals ofthe dispute is the last of the three Judgments, i.e.,Prabhat Kumar SharmaVs. Union Public Service Commission And Others(2006) 10 SCC587. Therein, it was, inter alia, held as follows:E

“8. Under the Constitution (Scheduled Tribes) Order, 1950 issuedin exercise of powers conferred under Article 342(a) of theConstitution of India, at Sl. No. 20 the tribe “Lohara” wasmentioned as Scheduled Tribe for the State of Bihar. The firstBackward Classes Commission was set up in the year 1953 knownFas the Kaka Kalelkar Commission. According to the report of theKaka Kalelkar Commission, amongst the list of Backward Classes,“Lohar” was shown at Sl. No. 60. However, the Commissionreport also dealt with the Scheduled Tribes Order and theCommission recommended that “Lohra” be added with “Lohara”Gin the Scheduled Tribes Order, 1950.

9. After the Kaka Kalelkar Commission Report, the ScheduledCastes and Scheduled Tribes Order (Amendment) Act, 1956 wasenacted which was brought into force with effect from 25-9-1956and for Bihar, Entry 20 was substituted to read as “Lohara” or“Lohra”. Thus, right up to 1976 there was no ambiguity in theH

Scheduled Tribes Order as only “Lohara” was initially consideredas Scheduled Tribe and with effect from 1956 “Lohara” as wellas “Lohra” were mentioned as Scheduled Tribes.

10. In the year 1976 the Scheduled Castes and Scheduled TribesOrder (Amendment) Act, 1976 was passed and in the Englishversion of the same viz. Entry 22 the position as existing from1956 was maintained. “Lohara” and “Lohra” were stated to beScheduled Tribes. However, in the Hindi translation of the saidentry “Lohara” was translated as “Lohar”. Thus, the Hinditranslation had “Lohar” and “Lohra” as two Scheduled Tribes.After the 1976 amendment, members of the “Lohar” communitystarted claiming themselves to be members of Scheduled Tribeeven though they had been identified as Backward Class asearly as in the year 1955 by the Kaka Kalelkar Commission.

11. Because of the ambiguity in the Hindi translation of the 1976Scheduled Tribes Order, members of “Lohar” community claimedthemselves to be members of Scheduled Tribe. The first litigationwhich came to the Supreme Court on this subject was in ShambhooNath v. Union of India [ CA No. 4631 of 1990 dated of on 12-9-1990 (Ed.: Coram: Ranganath Misra, M.M. Punchhi and K.Ramaswamy, JJ.)] . This came up for hearing before three Judgesof this Court. This Court disposed of the appeal on 12-9-1990 [CA No. 4631 of 1990 dated of on 12-9-1990 (Ed.: Coram:Ranganath Misra, M.M. Punchhi and K. Ramaswamy, JJ.)] bypassing the following order:

“1. Special leave granted.

2. The short point raised in this appeal is as to whether the CentralAdministrative Tribunal was right in holding that the appellant didnot belong to the Lohar community which has now been declaredas Scheduled Tribe in Chapra District of Bihar. It is not in disputethat from 1976 onwards the community has been so included butaccording to the Postal Department of the Union of India, at thetime when the appellant entered into service, the community hadnot been so included and, therefore, the recruitment on the footingthat he was member of Scheduled Tribe entitled to reservationwas bad.

3. We have looked into the record and have heard counsel for theparties. In view of the accepted position that Lohar community is

ABC

Aincluded in the Scheduled Tribe from the date of amendment ofthe list in 1976 and the dispute as to whether the community wasknown as ‘Lohar’ or ‘Lohra’ and if it was the latter, it has been soincluded from before, we do not think the Tribunal was justified inholding the view it has taken.

B4. The appeal is allowed and the order of the Tribunal is vacated.The appellant shall now return to duty. The period between 16-12-1986 when the order removing him was made and the datewhen he would join in terms of our decision now he shall be entitledto 50% of his salary. In regard to all other service benefits, hisservice shall be treated to be continuous. This decision may notCbe taken as precedent. No costs.”(emphasis supplied)

It may be noted that at that point this Court did not notice thediscrepancy between the English and the Hindi translation of theScheduled Tribes Order and proceeded on the premise that“Lohar” being mentioned in the Hindi version of the Order, theDappellant was entitled to get the benefit of being ScheduledTribe. Even the counsel appearing on behalf of the Union of Indiadid not point out to the Court the discrepancy and the order waspassed treating the “Lohars” as members of the Scheduled Tribe.Rather the Union of India accepted the position that “Lohar”Ecommunity is included in the Scheduled Tribe. This order waspassed by the Court without any contest.”

14. Next, we must notice the Judgment rendered by Bench ofthree learned Judges of this Court in Nityanand Sharma and Anothervs. State of Bihar and Ors. (1996) 3 SCC 576. Therein, the appellantsFwho hailed from the State of Bihar and belonged to the Lohar Casteclaimed the status as Scheduled Tribes under the Scheduled Tribes Orderof 1950 as amended by the Scheduled Castes and Scheduled TribesOrders (Amendment) Act, 1976. We need only notice the followingparagraph Nos. 11, 13, 15:

“11. ‘Lohra’ or ‘Loharas’ are thus different from ‘Lohar’ in BiharGas ‘Lohars’, as noticed hereinbefore are ranked with ‘Koiris’ and‘Kurmis’ whereas ‘Lohra’ or ‘Loharas’ are merely sub-castes, asept of Mundas in Chotanagpur or sub-tribes of Asurs who areScheduled Tribes.

xxxxxx

13. The question then is: Whether Lohars could be considered bythe Court as synonyms of Loharas or Lohras?This question is nolonger res integra. In Bhaiyalal v. Harikishan Singh [(1965) 2SCR 877 : AIR 1965 SC 1557] , Constitution Bench of thisCourt had considered in an election petition whether Dadar castewas Scheduled Caste. It held that the President in specifying acaste, race or tribe has expressly been authorised to limit thenotification to parts of or groups within the caste, race or tribes. Itmust mean that after examining the social and educationalbackwardness of caste, race or tribe, the President may cometo the conclusion that not the whole caste, race or tribe, but partsof or groups within them should be specified as Scheduled Casteor Scheduled Tribe. The result of the specification is conclusive.Notification issued under Article 341(1), after an elaborate enquiryin consultation with the Governor and reaching the conclusionspecifying particular caste, race or tribe with reference to differentareas in the State, is conclusive. The same view was reiteratedin B. Basavalingappa v. D. Munichinnappa [(1965) 1 SCR 316: AIR 1965 SC 1269] .”

(Emphasis supplied)

15. Dealing with Shambhu Nath case, this Court held as follows:

“16. … In Shambhu Nath case [ CA No. 4631 of 1990, decidedon Sept. 15, 1990] this Court, therefore, did not intend to lay downany law that Lohars are Scheduled Tribes. Unfortunately due toconcession by the counsel for the Union, without due verificationfrom English version, this Court accepted Hindi version placedbefore the Bench and held that they were included as ScheduledTribes. There was an obvious mistake in accepting mistakenfact. Therefore, this Court proceeded on that mistaken assumptionwithout verification from the Act that Lohars are included in PartIII of Second Schedule relating to the State of Bihar. Therein thisCourt stated thus:

“In view of the accepted position that Lohar community is includedin the Scheduled Tribe from the date of the amendment of the listin 1976 we do not think that the Tribunal was justified in holdingthe view it has taken.”

ABC

A17. This Court, therefore, proceeded on the premise as admittedby the counsel that Lohar was included in the Act as Lohars inthe Second Schedule as Scheduled Tribe. The counsel wants usto read the earlier sentence, viz., “We have looked into the record”.In view of the factual quotation from the Act and the SecondSchedule, as extracted in the earlier part of the judgment, theBeffect of the above sentence speaks for itself and seems to beotherwise. As fact the Bench proceeded on the basis of theconcession of the Union counsel. It proved to be an obvious mistakeand as fact the translated Hindi copy was placed before theCourt and the Court proceeded on that premise. …”

16. We may finally notice paragraph-20 of Nityanand Sharma(supra):

“20. Accordingly, we hold that Lohars are an Other BackwardClass. They are not Scheduled Tribes and the Court cannot giveany declaration that Lohars are equivalent to Loharas or LohrasDor that they are entitled to the same status. Any contrary viewtaken by any Bench/Benches of Bihar High Court, is erroneous.It would appear that except some stray cases, there is consistentview of that Court that Lohars are not Scheduled Tribes. Theyare blacksmiths. We approve the said view laying down the correctElaw.”

17. perusal of paragraph No.20 would reveal unambiguouslythat this Court declared that Lohar is an Other Backward Class andwhat is more, they are not Scheduled Tribes and the Court cannot giveany declaration that Lohars are equivalent to Loharas or Lohras or thatFthey are entitled to the same status.

18. In the next judgment, which is reported in 1997 (3) SCC 406,Vinay Prakash and Others vs. State of Bihar and Others, in the veryfirst sentence of the Judgment, this Court notices that it was the fourthattempt made by the Lohar community to get the status of Lohara.GThereafter, the Court proceeds to hold that Lohars are, admittedly,blacksmiths, backward community in the State of Bihar, whereasLoharas are Scheduled Tribes in the State of Bihar. The Court furthernotices that an attempt was made to re-open the declaration containedin Nityanand Sharma (Supra) also. The Court held, inter alia, asfollows:-H

“6. The question is whether person, who is not ScheduledTribe under the Presidential notification, is entitled to get the statusof Scheduled Tribe. It is already held that though the Englishversion of the Presidential notification clearly mentions “Lohara”,there was no mention of Lohar. But while translating it, Loharswere also wrongly included as was pointed out by this Court inNityanand Sharma case [(1996) 3 SCC 576] . It would, thus, beseen that the Presidential notification was unequivocal and,therefore, Lohars were not Scheduled Tribes within the meaningof the definition of “Scheduled Tribes” under Article 366(25) readwith the notification issued by the President of India under Article342(1) of the Constitution and, therefore, this Court had pointedout that they are not entitled to the status of Scheduled Tribes. Itis clear that if Presidential notification does contain any specificclass or tribe or part thereof, then, as held by this Court, it wouldbe for Parliament to make necessary amendments in Article 342(2)of the Constitution and it is not for the executive Government butfor the Court to interpret the rules and construe as to whether aparticular caste or tribe or part or section thereof is entitled toclaim the status of Scheduled Tribes. Under these circumstances,we think that the decision in Nityanand Sharma case[(1996) 3SCC 576] does not require any reconsideration; so also otherdecisions referred to therein except the Palghat case [(1994) 1SCC 359] , which was later considered in another judgment. Underthese circumstances, we do not think that there is any illegality inthe decision rendered by the Division Bench of the High Courtwarranting interference.

7. It is then contended that the doctrine of prospective applicationof the judgment in Nityanand Sharma case [(1996) 3 SCC 576]may be applied. In support thereof, the learned counsel reliedupon two judgments of this Court in State of Karnataka v. KumariGowri Narayana Ambiga [1995 Supp (2) SCC 560 : 1995 SCC(L&S) 887 : (1995) 30 ATC 37] and Govt. of A.P. v. BalaMusalaiah[(1995) 1 SCC 184 : 1995 SCC (L&S) 275] . We are afraid, wecannot accede to the contention of the learned counsel. This is acase where the respondents were not entitled, from the inception,to the social status of Scheduled Tribes. Since the entry gained bythem was based on wrong translation made by the Department inthe notification and the order was obtained on that basis, the same

ABC

Acannot be made the basis of grant of the status of ScheduledTribes. We cannot allow perpetration of the illegality since underthe Constitution they are not at all entitled to the status of ScheduledTribes. Under these circumstances, the above two judgments haveno application to the facts in this case.”

(Emphasis supplied)

19. It was nearly after decade, again that this Court had occasionto consider this question and the same is reported in Prabhat KumarSharma (supra). The Court, in fact, notices the fact that it was thesecond attempt to revisit the exposition of law in Nityanand SharmaC(supra).

An attempt was made before this Court in Prabhat KumarSharma (supra) to contend that after the coming into force of the OfficialLanguages Act, 1963, the Hindi version was the authoritative text andshould there be conflict between the Hindi and English version, theDHindi version should prevail. These arguments were specifically dealtwith and rejected.

“21. Learned Senior Counsel appearing for the appellant contendsthat after the coming into force of the Official Languages Act,1963 the Hindi version was the authoritative text and in the caseEof ambiguity between Hindi and English versions, the Hindi versionwould prevail. Article 348 of the Constitution clearly providesEnglish to be the authoritative text in respect of Acts of Parliament,amendments to Acts subject to any law made by Parliament. TheOfficial Languages Act, 1963 vide Section 3 thereof provides forcontinuance of English language for official purposes of the UnionFand for use in Parliament. Section 5 provides for Hindi translationof all Central Acts and Ordinances promulgated by the Presidentor if any order or rule or regulation or bye-laws issued under theConstitution or under any Central Act. Section 6 deals with theState Act with which we are not concerned in the instant case.GFrom conjoint reading of Article 348 of the Constitution andSections 3 and 5 of the Official Languages Act, 1963, Englishcontinues to remain the authoritative text in respect of the Acts ofParliament.”

20. Thereafter, we may only notice to do justice to the petitioners,the judgment of this Court reported in (2020) 14 SCALE 456, TheH

State of Maharashtra &Anr. vs. Keshao Vishwanath Sonone&Anr.and we do not think we should burden our judgment further with referenceto case law. Suffice it to say that this Court has categorically ruled thatLohars were not members of the Scheduled Tribe and they were membersof the OBC in the State of Bihar.

21. In this background, we must consider the challenge to theimpugned Notification. The stand of State is that in the year 1976, in theHindi version of the Act, at serial No.22 of the List of Scheduled Tribesfor Bihar, the social group ‘Lohar, Lohra’ (in Hindi) was specified. It istheir further case that later by another amendment in the year 2006 (Act48/2006), amendment was made to the Act of 1976, whereby the schedulein part III relating to the State of Bihar, for item No. 22 (since renumberedas item 21), as appearing in the Hindi version of the Act, the words‘Lohara, Lohra’ were substituted for the words ‘Lohar, Lohra’.Reference is made to the fact that during this time various associationsof Lohar caste were repeatedly making representation and emphasizingthat the word ‘Lohara’ was the English translation of the word ‘Lohar’.It is further contended that in Act No.48 of 2006, persons belonging tothe Lohar social group in the State of Bihar were not being recognizedas Scheduled Tribe at the time. However, keeping in view thebackwardness of the said caste, an ethnographic report wascommissioned to be prepared to evaluate the social and educational statusof the Lohar social group. This group , inter alia, concluded on the basisof survey of 38 districts of Bihar that Lohara/Lohra were both meresynonyms of the Lohar social group and were one and the same. On thebasis of the ethnographic report, the State recommended to the CentralGovernment to include the Lohar social group in the list of ScheduledTribes. During the pendency of the recommendation with the CentralGovernment, it came to the notice of the State Government thatParliament hadenacted Act 23 of 2016 which had repealed the earlieramending Act of 2006 which had substituted the words ‘Lohar, Lohra’with the words ‘Lohara, Lohra’. Various associations of the Lohar castestarted claiming, owing to the repeal of the 2006 Act, that the status ofthe 1976 Act stood restored. In the light of the aforesaid and owing tothe ethnographic report, the State decided to facilitate the Lohar caste inthe State of Bihar as Scheduled Tribe on the basis of the impugnedNotification. The State Government has also requested the CentralGovernment to delete the entry of ‘Lohar’ caste from the CentralGovernment’s list of OBCs and the response of the Central Government

Ain this regard is awaited, is the further case of the State. In the meantime,Entry No.115 of the EBC List pertaining to caste ‘Lohar’ was deleted.Further additionally, and very recently, the State Government has alsomade request to the Central Government dated 28.10.2021 requestingit to delete ‘Lohar’ caste from entry No.18 of the Central OBC list forBihar by letter dated 08.08.2016 which was published as Gazette No.689Bdated 23.08.2016 which is the impugned Notification.

22. We are deeply anguished by the state of affairs which hasbeen brought to our notice through the contents of the petition underArticle 32. This is not matter which has not engaged the attention ofthis Court, which as we have noticed has dealt with the issue on asCmany as three occasions. It has been clearly and unequivocally declaredthat Lohars are not members of the Scheduled Tribe and they aremembers of the OBCs. Under the principle of separation of powers, inthe manner we have it under the Constitution, it becomes the duty andthe right of the Courts to settle disputes. The Constitution, no doubt, hasDgiven powers to the other organs of the State. When it comes to takingdecisions which affectthe rights of the citizens, it is the paramount dutyof the Executive to enquire carefully about the implications of itsdecisions. At the very minimum, it must equip itself with the law which islaid down by the Courts and find out whether the decision will occasiona breach of law declared by the highest Court of the land. This is caseEwhere we have noticed an unbroken line of reasoning and decisions asnoticed in the three judgments which we have referred to. This Courthas also pronounced on the aspect of the English language prevailingover the Hindi version, if there is conflict.

23. We should further realize the impact of decision on the RightsFand what is more, Fundamental Rights of the citizens flowing from ofGovernment’s action: and the need to increasingly evolve system,whereby decision making promotes and strengthens the rule of law.Respect for the decisions of the Courts holding the field are the verycore of Rule of Law. Disregard or neglecting the position at lawGexpounded by the Courts would spell doom for country which isgoverned by the Rule of Law.

24. In this case, it is clear as daylight that the Lohars were notincluded as members of the Scheduled Tribe right from the beginningand they were, in fact, included as members of the OBCs in the State ofHBihar. This position has attained articulation at the hands of this Court

and this Court has traced the history of the matter in the decision inPrabhat Kumar Sharma (supra).

25. What has apparently happened is that in the year 2006, initially,by the Act 48 of 2006, in the Hindi version of the 1976 amendment, thewords ‘Lohara, Lohra’ were added as serial No.21 in place of the earlierserial No.22 which was subsequently renumbered as serial No.21.Apparently, this amendment did not and would not advance the case forthe Lohars being Scheduled Tribes. On the other hand, it was in conformitywith the English version which is the authoritative version. Subsequently,in 2016, it is true that Act 48 of 2006 came to be repealed. Even takingthe effect of the repeal to be that Act 48 of 2006 which was repealedwas never in the statute book, it cannot possibly lead to the position thatLohars can make their way into the list of Scheduled Tribes. What is thebasis for the respondent-State to take it upon itself to issue the impugnedNotification by which referring to the 2016 amendment repealing the2006 Act, it proceeded to give approval to caste certificate of ScheduledTribe to Lohara, Lohar community?Lohar is not same as Lohara.IncludingLohars alongside ‘Lohara’ is clearly illegal and arbitrary. The Englishtext which has been held to be the authoritative text and the decisions ofthis Court have been ignored.We cannot at all, approve this approachwhich at the very minimum betrays total non-application of mind which,in turn, leads to an inference that it has been arrived in an arbitrarymanner. Thus, it attracts the wrath of Article 14 of the Constitution.This, in turn, justifies the approach of the petitioners under Article 32 ofthe Constitution.

26. The implications of this Notification are deep and it affectsthe rights of the citizens in the most adverse manner. The impact of theNotification is also to be gauged in the context of the 1989 Act as it iswith reference to the Presidential Notification under Article 342 thatprosecution under the 1989 Act is also to be judged. In the other words,a person who is Lohar on being treated as Scheduled Tribe would beentitled to invoke the protection of 1989 Act. That apart, it directly impingesupon the rights of the persons who stand in the shoes of the accused.The provisions of the 1989 Act have put stringent conditions in the matterof grant of bail. Anticipatory bail is not even permitted under Section 438of the Code of Criminal Procedure, 1973 vide Sections 18 and 18A ofthe 1989 Act. No doubt, the effect of these provisions has been clarifiedby the Court [See (Prathvi Raj Chauhan vs. Union of India andothers (2020) 4 SCC 727)].

A27. These are aspects which should have been borne in mind.This is apart from the fact that inclusion of persons otherwise disentitledin the category of Scheduled Tribes would directly constitute anunjustifiable inroad into the rights of those members of the ScheduledTribe in the matter of public employment and in other respects.B28. We are, therefore, of the view that there is absolutely no basis

B28. We are, therefore, of the view that there is absolutely no basisfor respondent-State to have issued the impugned Notification. Thelimitation on the power of the Executive in this regard has been declaredin Vinay Prakash (supra). We would think that the approach has beenvery casual and it has created situation for which the State is solelyresponsible, even when it was entirely avoidable if only the respondentChad taken proper care and applied its mind as we have already noticed.

29. In view of the aforesaid discussion, the writ petition must beallowed and the impugned Notification must perish.

The further, relief which is sought by the petitioners is that theyDmust be given compensation. Undoubtedly, this Court has power of grantof compensation in the case of violation of Fundamental Rights. If anyauthority is required for the same, we may only refer to the judgment ofthis Court in Nilabati Behera @ Lalita Behera v. State of Orissa(1993) 2 SCC 746. We do not think that we should refer to any furtherjudgments.E

30. We have noticed that there is case for the petitioners thatpetitioner Nos. 2 and 4 did undergo imprisonment for some time. Nodoubt, there is case for the State that the prosecution in regard to thetwo petitioners was not solely premised on the complainants thereinbelonging to the Lohar caste setting up case under the 1989 Act. ThereFis no relief sought in regard to quashing of the proceedings. However, wedo think that the petitioners must be adequately provided for in monetaryterms which we would describe as costs. In the facts and circumstancesof this case, we would think that an amount of Rs.5,00,000/- (RupeesFive Lakhs) must be imposed as costs.G31. Resultantly, we allow the writ petition.We quash the impugned

G31. Resultantly, we allow the writ petition.We quash the impugnedNotification. We may notice that in the impugned Notification, thedirection is to give certificate to ‘Lohara’, (‘Lohar’) community. While‘Lohara’ is member of the Scheduled Tribe, ‘Lohar’ is not. Therefore,while we have quashed the notification, it must not be understood asmeaning that ‘Lohara’ which is already included in the category ofH

Scheduled Tribe is to be affected by this Judgment. We clarify that thequashing of the impugned Notification will be qua ‘Lohar’ communityand the Lohara will continue to get the benefit vouchsafed for themunder the Presidential Order as amended by the Acts.We direct that therespondent No. 1 shall pay costs in the sum of Rs.5,00,000/- (RupeesFive Lakhs) which shall be done within period of one month fromtoday and the respondent shall produce proof of the payment of thecosts by production of the receipt of the same within period of sixweeks from today. As regards the cases against the petitioners, it is forthe petitioners to work out the remedies in the appropriate Forum andnecessarily, the Courts will take note of the pronouncement which wehave made today.

We would expect that the first and the second respondents willissue appropriate direction(s) to the authorities in the light of today’spronouncement.

Pending application(s), if any stand disposed of.

Devika Gujral

Writ petition allowed.

(Assisted by : Shevali Monga, LCRA)