Supreme Court's bench of Justices Vikram Nath and Prashant Kumar Mishra set aside the judgement of Chief Justice Rajendra Menon and Justice Sudhir Singh Patna High Court's division bench dated April 3, 2017 on July 15, 2024. Its judgement reversed the High Court's judgement dismissing five cases challenging a Notification dated July 1, 2015, whereby the State Government had passed a resolution based upon consideration of recommendations by the State Backward Commission which had recommended that in the list of Extremely Backward Classes published under the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991, the caste “Tanti-Tantwa” recorded at Serial No.33 be deleted and the said “Tanti-Tantwa” be merged in the Scheduled Castes list with the caste 'Pan/Sawasi' mentioned at Serial No.20 so that they could get benefit of the Scheduled Castes. Supreme Court has quashed the Resolution/Notification dated July 1, 2015. It is noteworthy that the Union of India fully supported the appellants.
The Court has recorded that the challenge to the Resolution/Notification was mainly on the ground that the State Government had no competence/authority/power to add a caste or sub-caste to any entry in the Scheduled Castes list notified under the Presidential Order under Article 341 of the Constitution of India. Once the list under the Presidential Order is published, thereafter, any amendment, addition, deletion or modification to the said list can be made only by law enacted by Parliament and not otherwise. Before the High Court, the respondent-State of Bihar as also other private respondents took up a plea that the impugned Notification dated 01.07.2015 does not meddle with the Presidential Order and the list published thereunder but, in fact, it was only that “Tanti-Tantwa” were one and the same as 'Pan/Sawasi' except that they had the special title within the caste of 'Pan/Sawasi' and were being referred to as “Tanti-Tantwa” in the State of Bihar and, therefore, it was not a case of alteration of the list but only of clarification. It was also submitted by the respondents before the High Court that the State Government was bound by the recommendations made by the State Backward Commission and had, therefore, rightly deleted “Tanti-Tantwa” from the list of Extremely Backward Classes and merged with the Entry-20 of 'Pan/Sawasi' in the list of Scheduled Castes published in 1976. The High Court accepted the submissions of the respondents.
The Supreme Court examined questions like: what the Constitution of India provides regarding preparation of list for Scheduled Castes for different States. How a list declared under the Presidential Order can be altered, modified or amended. What does the Constitution provide regarding the Backward Classes for every State. The entries in the Presidential Order of 1950 and the subsequent Amendments made by the Parliament in the list published under the Presidential Order of 1950.
Article 341 confers power on the President of India to specify the castes, races or tribes or parts of or groups within castes, races or tribes which, for the purpose of the Constitution, be deemed to be Scheduled Castes in relation to that State or Union Territory. Further, sub-Clause 2 of Article 341 provides that the Parliament may, by law, include or exclude from the list of Scheduled Castes specified in a Notification issued under Clause-1 any caste, race or tribe or part of or group within any caste, race or tribe. It further creates a prohibition that, save as aforesaid, a Notification issued under Clause-1 shall not be varied by any subsequent Notification. Article 341 of the Constitution reads as follows:“Article 341. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
From a plain reading of the above Article and in particular sub-Clause 2, two things are clear – first, the list specified under the Notification under Clause-1 can be amended, altered only by law made by Parliament and, second, it prohibits that but for a law made by Parliament a notification issued under sub-Clause-1 cannot be varied by any subsequent notification. That is to say that neither the Central Government, nor the President can make any amendments or changes in the notification issued under Clause-1 specifying the castes in relation to the States or Union territory, as the case may be.
A plain reading of the Article 341 is that, it does not deal with merely castes, races or tribes but also parts of or groups within castes, races or tribes, therefore, if any change is to be made with respect to inclusion or exclusion not only of any caste, race or tribe but also of a part of or group within any of the caste, race or tribe the same has to be done by law made by the Parliament.
The Constitution (Scheduled Castes) Order, 1950 was first notified on 10th August, 1950 and published in the Gazette of India, Extraordinary on 11th August, 1950. With respect to the State of Bihar, the following list was mentioned in the Schedule as “Part II-Bihar”:
“1. Throughout the State:
1. Bauri
2. Bantar
3. Bhogta
4. Chamar
5. Chaupal
6. Dhobi
7. Dom
8. Dusadh, including Dhari or Dharhi
9. Ghasi
10. Halalkhor
11. Hari, including Mehtar
12. Kanjar
13. Kurariar
14. Lalbegi
15. Mochi
16. Musahar
17. Nat
18. Pan
19. Pasi
20. Rajwar
21. Turi”
'Pan Caste' was specified as a Scheduled Caste throughout the State of Bihar under the above notification mentioned at Serial No.18.
The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, which was enacted by the Parliament being Act No.63 of 1956, with respect to the State of Bihar and the Entry of the caste with which these appeals relate to, at Serial No.18 'Pan' as originally mentioned in the order of 1950, was replaced by 'Pan or Sawasi'.
In the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967 enacted by the Parliament in the 20th year of the Republic of India, the list with respect to the State of Bihar mentioned in Part-III of the Schedule at Serial No.20, the following Entry of the Castes was made as 'Pan; Sawasi, Tanti-Tantwa'. This bill never came to be enacted as an Act of Parliament and accordingly must have lapsed. The next Amendment then came was the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 was enacted by the Parliament in the 27th year of the Republic of India, according to which, Entry-20 in Part-III of the Schedule with respect to the State of Bihar, the entry remained the same as that in the 1956 Amendment i.e. 'Pan, Sawasi'.
By the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002 enacted by the Parliament in the 53rd year of the Republic of India, Entry 20 for the State of Bihar was substituted by 'Pan, Sawasi, Panr'.
Article 338-B of the Constitution provides that the State Government may establish Commission for Backward Classes.
The legislature of the State of Bihar enacted the Bihar State Commission for Backward Classes Act, 1993 (State Act No.12 of 1993) for establishing a State Commission for Backward Classes and to provide for matters connected therewith or incidental thereto. Section 9 of the said Act defines the functions of the Commission; Section 10 defines the powers of the Commission and Section 11 provides that the State Government shall do a periodic revision of lists of Backward Classes every ten years and in doing so would consult the Commission.
The legislature of the State of Bihar also enacted the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (Act No.3 of 1992) and under the said Act it declared the lists of Extremely Backward Classes wherein at Serial No.33, “Tanti-Tantwa” was shown as one of the castes falling in the Extremely Backward Classes.
The Ministry of Social Justice and Empowerment, Union of India filed an application making that the Government of Bihar vide letter dated 05.08.2011 had recommended inclusion of “Tanti-Tantwa” in the list of Scheduled Castes as a synonym of 'Pan, Sawasi, Panr'. The said proposal of the State was examined as per settled modalities in consultation with the Registrar General of India (RGI), who did not support the said proposal vide its comments dated 24.01.2013. The observations of the RGI were conveyed to the State Government on 31.01.2013 to review/further justify the recommendations in the light of the comments made by the RGI.
The response of the State Government in the matter was awaited. Thus, till date “Tanti-Tantwa” caste has not been included in the list of Schedule Castes of the State of Bihar and, as such, its members are not entitled to Scheduled Castes' status. It mentioned that the Department had received references from the Union Public Service Commission as also the Department of Personnel and Training, Government of India to show that Members of “Tanti-Tantwa” community, who were otherwise appearing at Serial No.48 of the Central List of Other Backward Classes were being issued Scheduled Castes Certificates in the name of 'Pan, Sawasi, Panr' in view of the State Government's Resolution dated July 1, 2015.
The Ministry had written more than half a dozen letters right from 2015, 2016, 2018, 2019 and 2020 requesting the Government of Bihar to issue necessary instructions to the Authorities empowered to not to issue Scheduled Castes Certificates to members of “Tanti-Tantwa” in the name of 'Pan, Sawasi, Panr'. In paragraph-11, it is stated that the Government of Bihar informed the Central Ministry that as the Resolution dated 01.07.2015 was challenged before the Patna High Court and the High Court had upheld its legality vide judgment dated 03.04.2017, as such, issuance of Scheduled Castes Certificates to the members of “Tanti Tantwa” and extension of benefits of Scheduled Castes to them was legally permissible.
On behalf of the appellants, Indira Jai Singh referred to the Constitutional provisions contained in Articles 366(24) and 341 to submit that the impugned Notification/Resolution dated 01.07.2015 cannot stand. Any amendment or change in the specified lists of Scheduled Castes notified under Article 341 can only by a law enacted by the Parliament. "The State has no role to play in tinkering with the lists notified under Article 341."
The judgement reads: "We have no hesitation in holding that the Resolution dated 01.07.2015 was patently illegal, erroneous as the State Government had no competence/ authority/power to tinker with the lists of Scheduled Castes published under Article 341 of the Constitution. The submission of the respondent- State that Resolution dated 01.07.2015 was only clarificatory is not worth considering for a moment and deserves outright rejection. Whether or not it was synonymous or integral part of the Entry-20 of the lists of Schedule Castes, it could not have been added without any law being made by the Parliament. The State knew very well that it had no authority and had accordingly forwarded its request to the Union of India in the year 2011. The said request was not accepted and returned for further comments/justification/review. Ignoring the same, the State proceeded to issue the Circular dated 01.07.2015. The State may be justified in deleting “Tanti-Tantwa” from the Extremely Backward Classes list on the recommendation of the State Backward Commission, but beyond that to merge “Tanti-Tantwa” with 'Pan, Sawasi, Panr' under Entry 20 of the list of Scheduled Castes was nothing short of mala fide exercise for whatever good, bad or indifferent reasons, the State may have thought at that moment. Whether synonymous or not, any inclusion or exclusion of any caste, race or tribe or part of or group within the castes, races or tribes has to be, by law made by the Parliament, and not by any other mode or manner."
The Supreme Court observed: The Provisions of Article 341 sub-Clause 1 and sub-Clause 2 are very clear and discrete. There is no ambiguity or vagueness otherwise requiring any interpretation other than what is mentioned therein. The State of Bihar has tried to read something in order to suit its own ends for whatever reason, we are not commenting on the same.The High Court fell in serious error in upholding the said Notification on a completely wrong premise without referring to Article 341 of the Constitution."
The judgement authored by Justice Vikram Nath directed that such posts of the Scheduled Castes Quota which had been filled up by members of “Tanti-Tantwa” community availing benefit on the basis of Resolution dated 01.07.2015 may be returned to the Scheduled Castes category and such candidates of “Tanti-Tantwa” community be accommodated by the State in their original category of Extremely Backward Classes by taking appropriate measures.
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