Makireddy Bangaru Talli and Another vs Collector and Others

Bhaskar Rao, J.—In this writ petition, the petitioners seek a declaration that the Circular, R.Dis C.5(M) 3779/87 dated 20-2-88 of the 1st respondent, and another Circular M/990/87 dated -9-1987 issued by the 2nd respondent are without jurisdiction and in contravention of the provisions in Article 342 of the Constitution of India.

The 1st respondent-Collector of East Godavari District as a measure of clarification in regard to the identification of persons belonging to Valmiki tribe, which is declared as a Scheduled Tribe in East Godavari District for the first time after Independence as per the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, issued the Cricular dated 20-2-88. In paragraph 18 of the Circular it is clarified that Malas or agency Malas or Valmikis, whose fore-fathers were bonafide residents of agency-tracts of East Godavari prior to 1924 and upto 6-9-1950 shall be considered to be treated as Scheduled Tribes. This guideline formulated as a measure of identification is assailed in this writ petition mainly on the ground that it is in violation of Article 342 of the Constitution of India.

It is, therefore, necessary to have a look at Article 342 of the Constitution, which reads:

"342. Scheduled Tribes: (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 tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes 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 Tribes specified in a notification issued under Clause (1) any tribe or tribal community, or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

It is, thus, clear from Article 342(2) that it is only the Parliament that is empowered to include in or exclude from the list of Scheduled Tribes notified by the President in accordance with Article 342(1) part of any tribe or group within any tribal community. It is in pursuance of this power, the Parliament through Section 4(1) of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1950, amended the Schedule to the Constitution (Scheduled Tribes) Order, 1950 made by the President in exercise of the powers conferred by Article 342(1) of the Constitution and included therein for the first time the tribe ''Valmiki'' in the agency tracts as one of the Scheduled Tribes. Nowhere in the amended Schedule ''Mala'' or agency Mala is shown as a Scheduled Tribe or as Part of Sub-caste to Valmiki for being treated as a Scheduled tribe. In view of this, the learned counsel for the petitioners submitted, the impugned circulars whereby Malas or agency Malas are also directed to be considered as a Scheduled Tribe by the Collector of East Godavari are in violation of Article 342(2) of the Constitution of India. In this regard, the learned counsel sought to place reliance upon a decision of the Supreme Court in Bhaiyalal Vs. Harikishan Singh and Others, . The case before the Supreme Court relates to Scheduled Caste and the notification issued by the President under Article 341 (1) refers to Chamar, Jatav or Mochi, whereas the plea of the appellant before that Court is that though he is not a Chamar as such he can claim the same status by reason of the fact that he belongs to the Dohar caste, which is a sub-caste of Chamar Caste. While rejecting the said plea, the Supreme Court held that it is not open to make any modification in the Order (Presidential Order) by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A, and therefore must be deemed to be included in caste A. It is also held by the Supreme Court therein that on inquiry as to whether Dohar caste is a sub-caste of Chamar caste so as to declare the appellant before the Court as one belonging to Scheduled Caste is also not permissible in view of the provisions contained in Article 341. This decision of the Supreme Court, though pertains to Article 341 dealing with Scheduled Caste, is applicable on all fours to a case of the present nature where the question involved relates to Scheduled Tribe under Article 342 of the Constitution of India. Therefore, I find sufficient substance in the contention of the teamed counsel for the petitioners.

No doubt, as pointed out by the learned Government Pleader, the Circular of the Collector has made a very deep probe into the question by making reference to G.Os. starting from the year ''1918''. In G.O.Ms.No.137 dated 22-1-1918 the term ''Hill Tribe'' is defined. In the G.O.Ms.No. 1318 dated 18-6-1931 of the Revenue Department, Malas, agency Malas and Valmikis were included in the list of ''Hill Tribes''. Again in 1932 through G.O.Ms.No.768 Revenue dated 6-4-1932. Malas alone are included in the ''Hill Tribe'' and the same position continued in G.O.Ms.No. 1991 dated 2-11-1939. So much so in G.O.Ms.No. 1891 dated 2-11-1939 there was no mention about the word ''agency Mala'' or ''Valmikis''. Earlier to 1950 as noted in the circular there was no term by ''Scheduled Tribe'' and in those days Scheduled Tribes'' were called ''Hill Tribes''. As per G.O.Ms.No.1267 Rev. dated 4-7-''27 there were Malas, agency Malas and Valmikis. People belonging to these three communities and residing in the agency tracts were stated to be belonging to ''Hill Tribes'' in the G.O.NoT1318 dated 18-6-1931. However, in the latter G.Os. Malas alone were shown as being ''Hill Tribe''. Considering the issue in the light of the different G.Os., the Collector through the impugned circular included ''Malas'' and agency Malas'' also for being considered as ''Scheduled Tribes''. It is not the case that there was no tribe in the Agency Tracts of East Godavari by name ''Valmikis''. Even as per G.O.Ms. No. 1267 dated 4-7-1927 of the Revenue Department Malas, Agency Malas and Valmikis all the three, were residing in the Agency Tracts. This, therefore, is not a peculiar case, like the one in Basavalingappa v. Munichinnappa, AIR 1465 S.C. 1269. In Basavalingappa''s case the Supreme Court while laying down that it was not open to anyone to seek for any modification in the Order by producing evidence to show (for example) that though caste A alone was mentioned in the Order, caste B was also a part of Caste A, and as such to be deemed to be included in Caste A., pointed out that ''wherever one caste has another name it has been mentioned in brackets after it in the Order''. Following the first two decisions, namely in Bhatya Lal''s case (1 supra) and Basavalingappa''s case (2 supra) the Supreme Court in a later decision in Parsram and Another Vs. Shivchand and Others, held that Courts cannot scrutinise the Gazeteers and glossaries to find out whether ''Chamar'' was of the status of scheduled caste.

In the circumstances, I am of the clear view that howsoever effective are the pains taken by the Collector while tracing the G.Os. of the ancient years, the resultant inclusion of Malas and agency Malas in the Scheduled Tribes is bad in law and against the provisions of the Constitution of India. The latter circular of the 2nd respondent is simply consequential to the earlier one of the 1st respondent-Collector. Both the circulars, therefore, are liable to be quashed and are quashed accordingly. It is however made clear that this will not bar the Agent to the Government and the Agency Divisional Officer when a person approaches them claiming that he belongs to Scheduled Tribe being VALMIKI, to inquire into that and issue the certificate if so satisfied. With this observation, the writ petition is allowed. No costs. Advocate''s fee Rs. 350/-.

Before parting with this, I may make it clear that the State Government, if so desires, is at liberty to have the amendment necessary in this regard brought-in by the Parliament if it is felt that MALAS and agency MALAS deserve to be included in the list of Scheduled Tribes.