THE STATE OF MAHARASHTRA & ANR. v. KESHAO VISHWANATH SONONE & ANR.

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A schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said articles, cannot be varied by subsequent order or notification B even by the President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or courts or Tribunals are vested with any power to modify or vary the said Orders. If that be so, no inquiry is permissible and no evidence can be let in for establishing that a C particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included in the Orders. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful.” D

59Copy pinpoint59. The Constitution Bench reiterated that the power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament and Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order. Following was laid down in paragraph 15:- “15. Thus it is clear that States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. Number of persons in order to gain advantage in securing admissions in educational institutions and employment in State services have been claiming as belonging to either Scheduled Castes or Scheduled Tribes depriving genuine and needy persons belonging to Scheduled Castes and Scheduled Tribes covered by the Presidential Orders, defeating and frustrating to a large extent the very object of protective discrimination given to such people based on their educational and social backwardness. Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular H

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 645 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated that the said Orders cannot be amended or varied except by law made by Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard. The President had the benefit of consulting the States through Governors of States which had the means and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it is C Parliament that is in a better position to know having the means and machinery unlike courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically included, may lead to problems………………………………….”

60Copy pinpoint60. It is further to be noticed that Constitution Bench in Milind’s case (supra) has noted the ratio of earlier two Constitution Bench judgments in B. Basavalingappa’s case and Bhaiya Lal’s case and in paragraph 28 has reaffirmed the ration of above two Constitution Bench judgments. In paragraph 28, following is laid down:- “28. Being in respectful agreement, we reaffirm the ratio of the two Constitution Bench judgments aforementioned and state in clear terms that no inquiry at all is permissible and no evidence can be let in, to find out and decide that if any tribe or tribal community or part of or group within any tribe or tribal community is included within the scope and meaning of the entry concerned in the Presidential Order when it is not so expressly or specifically included. Hence, we answer Question 1 in the negative.” G

61Copy pinpoint61. In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950. It is further H

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A clear that there is no conflict in the ratio of Constitution Bench judgments of this Court in B. Basavalingappa’s case and State of Maharashtra Vs. Milind and Ors. (supra). The ratio of B. Basavalingappa’s case as noted in paragraph 6 of the judgment and extracted above is reiterated by subsequent two Constitution Bench judgments in Bhaiya Lal’s case and Milind’s case. There being no conflict in the ratio of the above B Three Constitution Bench judgments, we do not find any substance in submission of Shri Rohatgi that for resolving the conflict, the matter need to be referred to a larger Constitution Bench. We, thus, answer question Nos.1 and 2 in following words:- (i) The High Court in the writ petition giving rise to these appeals C could not have entertained the claim of a caste “Gowari” that it be declared a Scheduled Tribe as “Gond Gowari” included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken evidence to adjudicate the above claim. D (ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa’s case and Milind’s case. QUESTION NOS. 3 AND 4

E Both the above questions being inter-related are being taken together.

62Copy pinpoint62. The Scheduled Tribe “Gond Gowari” as existing in Item No.28 of Entry 18 of Constitution (Scheduled Tribes) Order, 1950 applicable to State of Maharashtra is continuing in the List of Scheduled Tribes of F Bombay State (now State of Maharashtra) since 29.10.1956. To a large number of members of the “Gond Gowari” caste Scheduled Tribe certificates have been issued by the competent authority in the State of Maharashtra from time to time. In Writ Petition No. 4779 of 2008 (Adivasi Gond Govari (Gowari) Sewa Mandal through its President vs. State of Maharashtra and others) the writ petitioner has prayed G for quashing and setting aside the caste validity certificates issued in the name of respondent Nos. 4 to 19 as “Gond Gowari”, Scheduled Tribe. The fact that before the High Court there was a writ petition where caste certificates granted to 16 respondents of “Gond Gowari” were sought to be quashed clearly proved the existence of community “Gond Gowari”. Although there have been recommendations by the State of H

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 647 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

Maharashtra earlier in the year 1967 and thereafter in the year 1979 to include the “Gowari” as Scheduled Tribe, the said recommendations were never accepted by the Parliament since in spite of passing of several Amendment Acts by the Parliament to the Constitution (Scheduled Tribes) Order, 1950 Entry of “Gond Gowari” in the Scheduled Tribe was never deleted. A private bill to delete Entry of “Gond Gowari” and substitute it by Gowari was not passed by the Parliament and turned down. The High Court has also referred to and relied on the book “Tribes and Castes of the Central Provinces of India by R.V. Russell and Rai Bahadur Hira Lal wherein castes “Gond Gowari” and “Gowari” were separately dealt with as distinct castes. It is also on the record that the State of Maharashtra even though it had recommended vide letters dated C 26.03.1979 and 12.06.1979 to include Gowari in the list of Scheduled Tribes but on 06.11.1981 State of Maharashtra wrote to Ministry of Home Affairs, New Delhi where dealing with the subject of the Scheduled Tribes in paragraph 3(iii) following was stated: “3 (iii) Following tribes do not fulfill the criteria of S.Ts and hence D State Government does not consider it necessary to include them in the list of S.Ts of this State and hence their inclusion is not recommended: 1) Otari 2) Gowari E

3) Dhangar 4) Mana”

63Copy pinpoint63. Thus, the State Government recommended Gowari not to be included as they having not fulfilled criteria of Scheduled Tribe. It is to F be noted that in letter dated 26.03.1979 of the Government of Maharashtra to the Union of India although recommendation was made to include Gowari in Scheduled Tribe but there was no recommendation to delete “Gond Gowari” from the list of Scheduled Tribes. In letter dated 26.03.1979 with regard to Gowari, following statement was made: G “III] GOWARI: The community is at present included in the list of Scheduled Tribes, as “Gond Gowari”. It has been represented to Government that Gowari community is not a sub-group of the tribe, Gond, but is is a separate tribe in itself. The State Government had accordingly recommended to the Government of India to show H

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A the Gowari tribe separately. A copy of Chief Minister’s D.O. Letter dated 27.1.1967 is enclosed. The tribe Gowari may now be included, as a separate tribe. The Joint Committee on the Scheduled Castes and Scheduled Tribes Orders(Amendment) Bill 1967, had recommended the inclusion of the community as a separate tribe for Vidarbha area.” B

64Copy pinpoint64. Thus, the recommendation to include Gowari as a separate Scheduled Tribe was forwarded by the State of Maharashtra in the year 1979 which was withdrawn in 1981 and after 1981 the State’s stand has been that “Gond Gowari” and “Gowari” are two separate castes and Gowari is not entitled for the benefit of Scheduled Tribe certificate. The C Government of State of Maharashtra, Tribal Development Department has issued G.R. dated 24.04.1985 where the State Government has referred to “Gond Gowari” as small sub-Tribe of Gond and non-Scheduled Tribe caste was referred as Gowari. Along with the Government Resolution dated 24.04.1985 a comparative Chart was annexed of D Scheduled Tribe and non-Scheduled Tribe community which was claiming benefit. It is useful to extract comparative table which was part of Government Resolution dated 24.04.1985 which is to the following effect: Number of General information Non- General places Traditional Remarks and Scheduled tribe of residence of scheduled of residence, Occupation general from the list and Scheduled tribes, Caste/tribe approximate of Non- information E the tribe, corresponding which can population and scheduled corresponding tribes, sub-tribe and obtain Caste other general Caste/Tribe tribe or sub- native place, Certificate by information of tribe on that population of showing the Non-scheduled number corresponding tribe, similarity of Caste/Tribe sub-tribe and other names (From general information column No.3) of Scheduled F tribes, corresponding tribes 1 2 3 4 5 6 7

8 (18) Gond There is a small sub Govari, The population Their main There is no Govari tribe of Gond tribe. Gavari, of Govari, occupations social relation G There is no separate Gaygovari, Gavari should are of Govari and mention of Milk-Govari be 2 lakhs. This Farming, corresponding population of this caste is spread Cow- tribes with sub-tribe. Their mainly in Animal Gond tribe. population is Nagpur, Farming, merged in Amravati, Production population of Gond Wardha, of Milk, tribe.. Yavatmal, Husbandry. H

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 649 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

This tribe is found Bhandara, There is no A in Kurkheda Taluka, Chandrapur, traditi onal, Gadchiroli district. Gaadchiroli hereditary, People from Gond districts. language, tribe who do animal “Krishna, marital farming are called Ganga, Jamuna” relations by locals “Gond are the between Govari. In 1901, worshipping them. Gond their population in god/goddesses Govar do not B Chandrapur district of this tribe. milk the was 3000. As they Kade-Kodevan cows. They belong to Gond is their main only do tribe, their language, God. They animal social li fe, customs, have caste farming. traditi ons, religious panchayat and Instead rituals are that of its chief is Govari tribe Gond. Clan, Family called do the god/goddess, “Gondya”. production C surnames and other They do not of milk. Due is same as that of marry in the to the Gond same clan. similarity of Clans such as name of Tohar, “Gavari” Ambadare, word, people Kohachya, of “Govari, Ravat, Sakhena, Gavari” D Thakare, obtain the Sonavane. Scheduled tribe certificate to take the benefits of the tribe.

65Copy pinpoint65. The above materials which were on the record before the E High Court as well as continuance of “Gond Gowari” as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950 for the last more than 60 years, it was not open for the High Court to proceed into the inquiry as to whether Scheduled Tribe “Gond Gowari” is not in existence. F

66Copy pinpoint66. The High Court in the impugned judgment has formulated three questions in paragraph 31 of the judgment which is to the following effect: “Therefore, the questions involved in all these cases are threefold as under: G (1) Is it permissible for this Court to hold that it is the Gowari community alone which is meant by 28th Item “Gond Gowari” in the cluster of tribes in Entry No. 18 in the Constitution (Scheduled Tribes) Order?, H

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A (2) Whether there existed any tribe as “Gond Gowari” as on 29-10-1956, i.e. the date of its inclusion as 28th Item in Entry No. 18 of the said Order, other than Gond and Gowari?, (3) If there did not exist as such any tribe as “Gond Gowari”, whether it was Gowari community alone which was included as B 28th Item in Entry No.18 of the said Order?”

67Copy pinpoint67. The High Court referring to this Court’s judgment in B. Basavalingappa proceeded to enter into the material produced by the respondents to the writ petition as to whether “Gond Gowari” were not in existence prior to their inclusion in Constitution (Scheduled Tribes) C Order, 1950. We have already held that the ratio of B. Basavalingappa judgment did not permit the High Court to enter into the issue as to whether a Tribe which is included in the Constitution (Scheduled Tribes) Order, 1950 did not exist. The High Court proceeded to answer to question Nos. 2 and 3 as noted above in paragraphs 34 to 57.

68Copy pinpoint68. Now, we proceed to consider the reasons given by the High Court in coming to the conclusion that Tribe “Gond Gowari” became extinct prior to 1911. The High Court in paragraphs 41 to 43 of the judgment has noticed the Census of India 1891. The High Court itself in the aforesaid paragraphs have noted that Census of 1891 separate figures were given of “Gowari” and “Gond Gowari”. In paragraph 43 following E observations have been made by the High Court: “43......The separate population figures of Gowaris and “Gond Gowari”s in the four districts of (i)Nagpur, (ii) Wardha, (iii)Chanda, and (iv) Bhandara in Nagpur Division were shown in the Table XIII in the Census Report of 1891. The strength of F Gowaris and “Gond Gowari”s in the said Census was shown in Nagpur as 13,491 and 11, in Wardha as 10,397 and 60, in Chanda 11,217 and 19, in Bhandara 49212 and 335 respectively in the part of C.P. and Berar.”

69Copy pinpoint69. The High Court has also noticed the Census of 1901 and G noticed that in Nagpur Division the total population of “Gowari” and “Gond Gowari” was mentioned. Gowari was mentioned as 91,632 and whereas “Gond Gowari”s were mentioned in five Districts of Nagpur Division as 2,553. The High Court then proceeded to examine the Census of 1911 and it noticed that earlier classification of caste according to their social precedents was changed reverting back to the past class H

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 651 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

classification of 1891 caste in according to traditional occupations, out A of 37 main occupational groups, group IV was of Forest and Hill Tribes and Group V was of Graziers and Dairymen. The High Court noticed that in Census of 1911 Group V in Central Provinces mentioned Gowari as 157,580 but there was no mention of “Gond Gowari”. Similarly, Census of 1921 of Group V of Graziers and Dairymen was noticed where Gowari B was mentioned as 155,902. After noticing the aforesaid facts from Census the High Court recorded its conclusion in paragraph 57 to the following effect: “57. In our view, the tribe “Gond Gowari”, which was a small hybrid caste formed by an alliance of Gond and Gowaris was completely extinct before 1911 Census and no trace of it C was found either in the Maratha country of the C.P. and Berar or in the State of Madhya Pradesh. We, therefore, hold that there did not exist any tribe as “Gond Gowari” as on 29-10-1956, i.e. the date of its inclusion as 28th Item in Entry No. 18 of the Constitution (Scheduled Tribes) Order in relation to the State of D Maharashtra and it was Gowari community alone shown as “Gond Gowari”. We, therefore, answer the question Nos. (2) and (3) accordingly.”

70Copy pinpoint70. The High Court itself has in its judgment noticed and found the mention of “Gond Gowari” in Census of 1891 and 1901. The substantial E figures of “Gond Gowari” in the above two Censuses in Nagpur Division were noticed. The High Court itself having noticed that the basis of Census in 1911 was changed, classification was made on the basis of traditional occupation in which group IV was of Forest and Hill Tribes and Group V was of Graziers and Dairymen, the figures of 1911, 1921 and 1931 have been noticed where in Group V Graziers and Dairymen, F there was mention of Gowari. Mere fact that in Censuses of 1911, 1921 and 1931 figures were given only of Group V, i.e., Graziers and Dairymen and there was no mention of “Gond Gowari” cannot lead to conclusion that “Gond Gowari” have become extinct before 1911. A Scheduled Tribe which admittedly was in existence and had a distinct identity shall G not be treated to have become extinct merely because the basis of Census has been changed in the subsequent years. The benefit given to a Scheduled Tribe cannot be taken away on the basis of figures given in Census operation only. There have been amendments in Constitution (Scheduled Tribes) Order, 1950 from time to time. Several Tribes were H

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A deleted from the list by the Act of Parliament and several new Tribes were included. There had been recommendations by the Joint Committee of Parliament for exclusion of the Tribes which were excluded if there was no return in respect of those communities in Censuses of 1961 and

1971. We may refer to Statement of Objects and Reasons of The Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1976 B which has been stated: “.....The Committee had also recommended exclusion of certain communities from the lists of Scheduled Castes and Scheduled Tribes. These exclusions are not being made at present and such communities are being retained in the lists with the present area C restrictions. Such of the communities in respect of which the Joint Committee had recommended exclusion on the ground that there were no returns in respect of these communities in the censuses of 1961 and 1971.”

71Copy pinpoint71. The above clearly indicates that those Scheduled Tribes and D Schedules Castes were excluded if only there was no return in respect of Census of 1961 and 1971. We, thus, are of the view that the whole basis of judgment of the High Court that Tribe “Gond Gowari” was extinct prior to 1911 Census and in subsequent Censuses 1911, 1921 and 1931 they were not shown in Group V is completely flawed. The inclusion E of sub-Tribe as “Gond Gowari” in the Constitution (Scheduled Tribes) Order, 1950 was on 29.10.1956 when sub-Tribe “Gond Gowari” was included in the Scheduled Tribe list it has to be presumed that the said inclusion was after consultation with the State and after considering the relevant materials. The High Court could not have questioned the inclusion of the Scheduled Tribe “Gond Gowari” in the Constitution (Scheduled F Tribes) Order, 1950 on the basis of reasoning as adopted by the High Court. The High Court has referred to and relied on the book “Tribes and Castes of the Central Provinces of India” by R.V. Russell and Rai Bahadur Hira Lal in which book in Volume III community Gond, “Gond Gowari” and Gowari were all separately dealt with, describing “Gond G Gowari” in Volume III Russell states: “Gond-Gowari.—A small hybrid caste formed from alliances between Gonds and Gowaris or herdsmen of the Maratha country. Though they must now be considered as a distinct caste, being impure and thus ranking lower than either the Gonds or Gowaris, H they are still often identified with either of them. In 1901 only

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 653 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

3000 were returned, principally from the Nagpur and Chanda A Districts. In 1911 they were amalgamated with the Gowaris, and this view may be accepted as their origin is the same. The Gowaris say that the Gond-Gowaris are the descendants of one of two brothers who accidentally ate the flesh of a cow. Both the Gonds and Gowaris frequent the jungles for long periods together, and it is natural that intimacies should spring up between the youth of either sex. And the progeny of these irregular connections has formed a separate caste, looked down upon by both its progenitors. The Gond-Gowaris have no subcastes, and for purposes of marriages are divided into exogamous septs, all bearing Gond names. Like the Gonds, the caste is also split into two divisions, worshipping six and seven gods respectively, and members of septs worshipping the same number of gods must not marry with each other.”

72Copy pinpoint72. In the same Volume Gowari has been dealt with: “ Gowari.—The herdsman or grazier caste of the Maratha country, corresponding to the Ahirs or Gaolis. The name is derived from gai or gao, the cow, and means a cowherd. The Gowaris numbered more than 150,000 persons in 1911, of whom nearly 120,000 belonged to the Nagpur division and nearly 30,000 to Berar. In localities where the Gowaris predominate, Ahirs or Gaolis, the regular herdsman caste,are found only in small numbers. The honorific title of the Gowaris is Dhare, which is said to mean ‘One who keeps cattle.’ The Gowaris rank distinctly below the Ahirs or Gaolis.”

73Copy pinpoint73. In the same Volume while describing the sub-Caste of Gowari F following description is given: “The Gowaris have three divisions, the Gai Gowari, Inga, and Maria or “Gond Gowari”. The Gai or cow Gowaris are the highest and probably have more Gaoli blood in them. The Inga and Maria or “Gond Gowari”s are more directly derived from the Gonds. G Maria is the name given to a large section of the Gond tribe in Chanda. Both the other two subcastes will take cooked food from the Gai Gowaris and the “Gond Gowari”s from the Inga, but the Inga subcaste will not take it from the Gond, nor the Gai Gowaris from either of the other two. The “Gond Gowari”s have been treated as a distinct caste and a separate article is given on them, H

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A but at the census Mr. Marten has amalgamated them with the Gowaris. This is probably more correct, as they are locally held to be a branch of the caste. But their customs differ in some points from those of the other Gowaris. They will admit outsiders from any respectable caste and worship the Gond gods, [115] and there seems no harm, therefore, in allowing the separate article on them B to remain.”

74Copy pinpoint74. In the above passage it has been categorically stated that “Gond Gowari” has been treated as a distinct caste and in the Census they have been amalgamated with Gowari. The account given by Russell does not lead to any conclusion that “Gond Gowari” were extinct before C 1911.

75Copy pinpoint75. It is also relevant to note that it was after the report of Backward Classes Commission (1955), where recommendation was made to include Gowari as sub-Tribe of Gond for the State of Madhya Pradesh, consequently by Scheduled Castes and Scheduled Tribes Orders D (Amendment) Act, 1956 in State of Madhya Pradesh “Gond Gowari” was added in Entry 12 and after re-organisation of the State, in Districts which came into State of Bombay, “Gond Gowari” was added by Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 dated 29.10.1956 “Gond Gowari” was added. There have been conscious E addition by Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956 and Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 as “Gond Gowari” it cannot be accepted that the Parliament included Tribe which had become extinct before 1911.

76Copy pinpoint76. The High Court in paragraph 68 of the judgment has itself referred to Report of Research Officers dated 12.05.2006. On the basis of the decision taken in respect Gowari community under the Chairmanship of Hon’ble Chief Minister on 29.05.2005 Tribal Development Department was entrusted to ascertain the facts. The Research Officers on 12.05.2006 personally visited the areas in which maximum population of Gowari caste and “Gond Gowari” caste were found in different villages of District Gadchiroli. It shall be useful to refer to the paragraph 68 of the judgment of the High Court which is to the following effect: “68. After going through the report dated 12-5-2006 (wrongly mentioned as ’18-5-2006'), we find that the Research Officers

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 655 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

visited the areas. The Committee of the Research Officers A conducted search of revenue and school records of certain claimants. It is the finding of the said Committee that upon inspection of P-I Register prior to 1950 in the Taluka Office of Land Records at Kurkheda, no evidence is found of the entry “Gond Gowari”, but the evidence is of the entries of Gowari or B Gowara. The Committee also inspected the school records of the period prior to 1950 from the Zilla Parishad Primary School, which included the school admission register and the affidavits. It found one entry of Gowari (Gond) made on 1-7-1955 and rest of the entries are of Gowara or Gowari, which are also found in the Zilla Parishad Primary Schools at Ramgad, Yenglekheda, Saletola. The C Research Officers further record the finding that upon oral interviews of the villagers, it is found that “Gond Gowari” tribe is a sub-tribe of Gond and their cultural traits and customs are found similar to those of Gond tribe. It further states that when the information about Gowari tribe is collected, it was found to be an D independent tribe, having no similarity in cultural traits and customs with Gonds or “Gond Gowari”s. The Committee has tried to lay down the six tests to make out a distinction between Gowaris and “Gond Gowari”s.”

77Copy pinpoint77. The High Court in the above paragraph itself has noticed that the Research Officers conducted research and has also found Entry of E “Gond Gowari” made on 01.07.1955. Thus, the Research Officers before 29.10.1956 found “Gond Gowari” hence the above evidence which was relied by the High Court itself proved that “Gond Gowari” Tribe was in existence and found personally by the Research Officers. Although in paragraph 68 the above facts were noticed by the High Court but in F paragraph 74 in the heading: ADJUDICATION BY US in sub-para (3) the High Court states: “74(3) There is no reason to discard the report of the Research Officers submitted on 12/18-5-2006. The Research Officers personally visited the core area of residence of Gond Gowaris, G inspected the old record of Zilla Parishad Schools and the Land Revenue Department, conducted oral interviews of the villagers, but did not find any Entry as Gond Gowari or any person of this tribe. The Research Officers record the finding that Gowari tribe has no affinity with Gonds. “ H (emphasis by us)

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78Copy pinpoint78. The conclusion of the High Court that Research Officers did not find any Entry as “Gond Gowari” is factually incorrect and contrary to what was found in paragraph 68 as noted above.

79Copy pinpoint79. We have already noted above the Government Resolution dated 24.4.1985 issued by the Tribal Development Department of the B State, the difference between “Gond” and “Gond Gowari”, the difference in the character and customs of Scheduled Tribe community of “Gond Gowari” and community of Gowari as extracted above. The Government Resolution was issued after study by the State Government, the High Court although has noticed above Resolution in paragraph 70 of the judgment but has given no reason as to why differentiation in two Tribes C is to be discarded.

80Copy pinpoint80. There is one more reason due to which the conclusion of the High Court that Scheduled Tribe “Gond Gowari” was extinct before 1911 has to be flawed. The reason is that in Writ Petition No.4779 of 2008 filed by Advasis “Gond Gowari” a prayer was made to quash the D Scheduled Tribe certificates to “Gond Gowari” granted to respondent Nos. 4 to 19. The High Court by passing order has called for certificates of “Gond Gowari” which are dealt with by the High Court in paragraph 77 to 83. In paragraph 77 following is the discussion by the High Court: “77. .......The record shows that 22 claimants produced the extracts of P-I Register maintained by the Taluka Land Records Departments showing the caste of their forefathers as “Gond Gowari” prior to 1950. Except this, none other claimants out of 136, produced any record of the period prior to the year 1950, evidencing their caste/tribe as “Gond Gowari”, but the documents produced by them indicate their caste/tribe as Gond, Gowara or Gowari. If the documents produced by all such 136 claimants prior to 1950 and subsequent to 1950 are taken into consideration, the same indicate that 39 claimants produced the documents indicating their tribe as “Gond Gowari”; 53 claimants produced the documents indicating their tribe as Gowari; 29 claimants produced the documents showing their tribe as Gowara; and 9 claimants produced the documents showing their tribe as Gond. This position is also admitted and demonstrated in the reply filed by the Committee. ”

81Copy pinpoint81. The High Court further in paragraph 83 after perusing the records of the Committee found 39 claimants produced the documents

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 657 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

which are in the nature of entries in P-I revenue record pertaining to the period 1922-1923. When before the High Court Scheduled Tribe certificates of “Gond Gowari” were filed in large number and there were documents to support by the revenue entries some of which are prior to 1950 and which certificates were sought to be quashed in the writ petition, the existence of Scheduled Tribe “Gond Gowari” was very much found. The Caste Scrutiny Committee having validated the said certificates it was not open for the High Court to say that Scheduled Tribe “Gond Gowari” became extinct prior to 1911. The host of the evidence which was before the High Court including the Research Officers’ Report dated 12.05.2006 and Scheduled Tribe certificates of the candidates who were “Gond Gowari” it was not open for the High C Court to come to the conclusion that Scheduled Tribe “Gond Gowari” was extinct prior to 1911. The High Court summoned all the certificates and there was no finding that certificates were fake or persons who were given certificates are non-existent. The High Court erred in coming to the conclusion that “Gond Gowari” Tribe was extinct prior to 1911. D We, thus, conclude that even on the basis of materials which were brought before the High Court no conclusion could have been drawn that “Gond Gowari” Tribe was extinct prior to 1911.

82Copy pinpoint82. We, thus, answer Question Nos.3 and 4 in the following manner: ANSWER NO. 3 E The High Court could not have entered into the issue that “Gond Gowari” which was Scheduled Tribe mentioned in Constitution (Scheduled Tribes) Order, 1950 as amended upto 1976 is no more in existence and became extinct before 1911. ANSWER NO. 4 F The conclusion of the High Court in the impugned judgment that “Gond Gowari” Tribe had been extinct before 1911 is not supported by the materials which were on record before the High Court. G QUESTION NO. 5 & 6 Both the questions being interconnected are taken together.

83Copy pinpoint83. The caste ‘Gowari’ and ‘Gond Gowari’ are two distinct and separate castes. We have extracted the description of ‘Gowari’ and ‘Gond Gowari’ given by Russell and Hiralal in the celebrated book, ‘The H

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A Tribes and Castes of Central Provinces of India’. Russel and Hiralal have separately dealt with ‘Gowari’ and ‘Gond Gowari’ and have categorically stated that ‘Gond Gowari’ have been treated as distinct castes from ‘Gowari’. We may also refer to the book published by Anthropological Survey of India, People of India, National Series Volume III on “The Scheduled Tribes’, where ‘Gond Gowari’ have been described B in following words: - “GOND, GOWARI They are a community of cattle herders who have been referred to by Russell and Hiralal (1916) as the Gond- Gowari and described as a small hybrid caste formed by an alliance between the Gonds and Gowaris. They have been enlisted as C Gowari, a subgroup of the Gond in the Government of India list for scheduled tribes. Our findings, however, reveal that they are a discrete community and not a subgroup of any other tribe. They are distributed in the Bhandara, Amravati and Garhchiroli districts of Maharashtra and in the Balaghat and Sioni districts of Madhya D Pradesh. Marathi is spoken for both inter-and intra-group communication. The Devanagari script is used. The Gowari are short and medium-statured people with a dark complexion. The main diet is rice, jowar and wheat, local pulses and seasonal vegetables. They are non-vegetarians but do not eat beef.”

84Copy pinpoint84. The ‘Gowari’ which is another backward community have not been included in the list of Scheduled Tribes in the above book.

85Copy pinpoint85. We have already referred to the Enquiry Report by the Tribal Development Department dated 12.05.2006. The Enquiry Report states following: - F “With connection of knowing the culture, customs and traditions of Gowari caste and Gowari Tribe, visits were made to aforesaid villages and during these visits village information sheets were given to villagers to be filled by them; also discussions made with them and their statements were recorded. Also information was G gathered from the rest of the villagers who did not belong to either of these two communities about their knowledge of these two communities. From this information it has transpired that Gond Gowari tribe is a sub-tribe of Gond Tribe and that there is traditional intermixing of food and marital ties (roti-beti relationship) between these communities and there are common cultural customs and H

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 659 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

traditions between them. However, having collected the information about Gowari Caste it has transpired that it has a separate existence and its culture, customs and traditions do not match with culture customs and traditions of Gond or Gond Gowari Tribe which are totally different.”

86Copy pinpoint86. We have further noticed the Census of 1891 and 1901 which have been referred by the High Court. The population of ‘Gowari’ has been shown separately from the population of ‘Gond Gowari’. We have also noticed the ratio of the Constitution Bench judgment of this Court in Basavalingappa and Bhaiya lal as well as Milind. The High Court could not have undertaken the enquiry to declare the caste which is not included in the Scheduled Tribes Order, 1950 as a Scheduled Tribe. The C High Court could not have granted a declaration that the caste ‘Gowari’ is ‘Gond Gowari’ which is referred to in Item 28 of Entry 18 of Constitutional Scheduled Tribes Order, 1950 amended as on date.

87Copy pinpoint87. The High Court’s view that ‘Gond Gowari’ is not a sub-tribe of ‘Gond’, hence, its validity cannot be tested on the basis of the affinity D test specified in the Government Order dated 24.04.1985 is also not correct. The report of the first Backward Commission (1955) by which recommendation was made to add ‘Gowari’ as a sub-tribe of ‘Gond’ was on the basis of study and research by the Backward Commission which cannot be brushed aside. E

88Copy pinpoint88. We have also noticed the authoritative books on Tribes in Central India that ‘Gond Gowari’ is a sub-tribe of ‘Gond’. In the Government Resolution dated 29.04.1985 comparative chart was annexed where general information regarding Scheduled Tribes and non-Scheduled Tribes i.e. ‘Gond Gowari’ and ‘Gowari’ have been given. The Government F Resolution also mentioned that ‘Gond Gowari’ is also a small sub-tribe of ‘Gond’ tribe.

89Copy pinpoint89. Shri Rohtagi submits that it has been held by this Court that with regard to entries of Scheduled Tribes in Entry 18, all entries be treated to be separate caste and it is not necessary to prove any affinity G with ‘Gond’. He submits that in the Entry 18, the word “including” was deleted by Scheduled Caste and Scheduled Tribes Order Amendment Act, 1976, the effect of which was that all entries of caste in Entry 18 became independent to ‘Gond’ and no affinity is to be proved by any community from ‘Gond’. He submits that ‘Gowari’ to claim the benefit H

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A of the Scheduled Tribe need not prove any affinity with ‘Gond’. He submits that the High Court has rightly undertaked the exercise to ignore a non-existent tribe and to extend the benefit of the Scheduled Tribe. Shri Rohtagi has placed reliance on judgment of this Court in State of Maharashtra versus Mana Adim Jamat Mandal, (2006) 4 SCC

98. In the above case, two questions were raised which have been noticed in the paragraph 1 of the judgment which is to the following effect: - “1. What appears to be a perpetual controversy with regard to the Scheduled Tribe status has again engaged the attention of this Court for a considerable time. Two questions are raised before us:

1. Whether the “Mana” community in the State of Maharashtra is a sub-tribe of “Gond” and is a Scheduled Tribe or not?

2. Whether a two-Judge Bench decision of this Court in Dina D v. Narayan Singh (for the sake of brevity “Dina I”) and the decision rendered by another two-Judge Bench of this Court in Dadaji v. Sukhdeobabu (for the sake of brevity “Dina II”) are overruled by a Constitution bench of this Court in State of Maharashtra v. Milind?”

90Copy pinpoint90. The caste ‘Mana’ was also one of the castes which was included in the Entry 18. By the Government Resolution dated 24.04.1985, it was directed that ‘Mana’ community be not treated as Scheduled Tribe unless they establish relationship or affinity with ‘Gond’ which Government Resolution was also under challenge in the above case.

91Copy pinpoint91. This Court in the above judgment noticed the deletion of word “including” in Entry 18 and came to the conclusion that Mana is not a sub-tribe of ‘Gond’. Following was laid down in paragraph 30: - “30. The common pattern found in most of the group entries is that there is a punctuation mark comma (,) between one entry and another entry in the group signifying that each one of them is G deemed to be a separate Scheduled Tribe by itself. In the present case, Entry 18 of the Schedule clearly signifies that each of the tribes mentioned therein is deemed to be a separate tribe by itself and not a sub-tribe of “Gond”. “Gond” is a Schedule Tribe, it is not disputed. As already noticed that “Gond” including Arakh or H Arrakh, etc. found in Entry 12 of the Amendment Act 63 of 1956

THE STATE OF MAHARASHTRA & ANR. v. KESHAO 661 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

has been done away with by the Amendment Act of 1976. In A Entry 18 of the Second Schedule of the Amendment Act of 1976 the word “including” was deliberately omitted, which signifies that each one of the tribes specified in Entry 18 is deemed to be a separate tribe by itself. Therefore, “Mana” is not a sub-tribe of “Gond” but a separate tribe by itself and is a Schedule Tribe.” B

92Copy pinpoint92. What was laid down by this Court with regard to ‘Mana’ which was also a tribe included in Entry 18 is not applicable with regard to Entry ‘Gond Gowari’. With the ‘Gowari’ word ‘Gond’ is prefixed. The expression ‘Gond Gowari’ clearly expresses that the community ‘Gond Gowari’ has to do with tribe ‘Gond’ The community ‘Mana’ has no such indication and insofar as ‘Gond Gowari’ is concerned we are clear in our view that ‘Gond Gowari’ is a community which has affinity with ‘Gond’ and is sub-tribe of ‘Gond’. The entry of ‘Gond Gowari’ in Scheduled Tribes Order 1950 was as a sub-tribe of ‘Gond’ which is clear from a report of the Backward Classes Commission, 1955. When the inclusion of the entry ‘Gond Gowari’ was as (sub-tribe of Gond), its affinity with ‘Gond’ cannot be ignored on any basis.

93Copy pinpoint93. The judgment of this Court in State of Maharashtra versus Mana Adim Jamat Mandal (Supra), cannot be read as an authority to hold that ‘Gond Gowari’ has no affinity with ‘Gond’. The judgment of this Court in State of Maharashtra versus Mana Adim Jamat Mandal E (supra) is solely based on deletion of word “including” in Entry 18. For the purpose of this case, we need not delve any further as to what is the intendment of Parliament in deleting the word “including” and by deletion of word “including”, all tribes included in common group i.e. Entry 18 shall be treated separate and has nothing to do with ‘Gond’. F

94Copy pinpoint94. We entertain our own doubts about the correctness of the ratio of judgment in the State of Maharashtra versus Mana Adim Jamat Mandal with regard to a group entry. As per Article 342(1), tribes or tribal communities or parts or groups within tribes or tribal communities shall for the purposes of the Constitution be deemed to be Scheduled Tribes. There has to be some purposes for joining number of G tribes together in one entry, but as observed above in case with regard to ‘Gond Gowari’ the affinity is more than apparent with ‘Gond’ and the judgment of this Court in State of Maharashtra versus Mana Adim Jamat Mandal (Supra) cannot be read as an authority to hold that ‘Gond Gowari’ is not a sub-tribe of ‘Gond’ and no affinity is required to H

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A be established with Gond by the tribe ‘Gond Gowari’. We thus do not find any infirmity in Government Resolution dated 24.04.2984 insofar as Scheduled Tribe ‘Gond Gowari’ is concerned.

95Copy pinpoint95. In view of the foregoing discussion we answer question No.5 and 6 in following manner: - B ANSWER NO. 5 The caste ‘Gowari’ is not the same as ‘Gond Gowari’. The High Court could not have granted declaration of caste ‘Gowari’ as ‘Gond Gowari’.

C ANSWER NO. 6 The High Court is not correct in its view that ‘Gond Gowari’ shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950, is not a sub-tribe of ‘Gond’. The validity of caste certificate to ‘Gond Gowari’ has to be tested on the basis of D affinity test as specified in the Government Resolution dated 24.04.1985.

96Copy pinpoint96. In view of the foregoing discussion, none of the reasons given by the High Court in paragraph 74 of the judgment are sustainable to hold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of ‘Gond Gowari’. The entire basis of the judgment of the High Court that tribe E ‘Gond Gowari’ was completely extinct before 1911 having been found to be flawed, the entire basis of judgment is knocked out.

97Copy pinpoint97. Much emphasis has been given by the learned counsel for the respondents that the State Government having recommended in 1967 and 1979 to include ‘Gowari’ in the list of Scheduled Tribes, it could not have changed its view subsequently. One of the reasons given by the High Court in paragraph 74(2) is as follows: - “74(2). We accept the view taken by the Central and the State Government that - (a) Gowari community is included in the Scheduled Tribes Order of the State as ‘Gond Gowari’ and it is wrongly projected as a sub-tribe of Gond, (b) Gowari is an independent tribe and not a sub-tribe of Gond, and (c) it is the Gowari community which will have to be issued the certificate as Gond Gowari.”

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THE STATE OF MAHARASHTRA & ANR. v. KESHAO 663 VISHWANATH SONONE & ANR. [ASHOK BHUSHAN, J.]

98Copy pinpoint98. When the State has expressly after 1979 has written to the A Government of India on 06.11.1981 that ‘Gowari’ community does not fulfill the criteria of Scheduled Tribe and thereafter after 1984, several studies were conducted by Tribal department in State of Maharashtra including report dated 12.05.2006 which reaffirms that ‘Gond Gowari’ and ‘Gowari’ are distinct community and ‘Gowari’ is not Scheduled Tribe, B there was no error in taking stand before the High Court in the writ petition that ‘Gowari’ are not entitled for Scheduled Tribe Certificate. We fail to understand as to how the High Court has observed that it accepts the view of the Central and State Government that ‘Gowari’ community be included in the Scheduled Tribe Order.

99Copy pinpoint99. Learned Counsel for the petitioner has also relied on the report dated 29.10.2020 submitted by Tata Institute of Social Sciences, Mumbai on “Socio Anthropological study of ‘Gowari’ community of Maharashtra” in which report, the conclusion has been recorded that there are major differences between ‘Gond Gowari’ and ‘Gowari’. It is relevant to notice that the High Court has noticed the decision of the State Government to entrust the study to Tata Institute of Social Sciences which facts have been noticed in paragraph 86 of the judgment. Although the report dated 29.10.2020 which has been brought on the record do reaffirms the stand taken by the State that both the communities are distinct and different and ‘Gowari’ are not Scheduled Tribe but we need not base our judgment on such report benefit of which report was not available to the High E Court while deciding the writ petition.

100Copy pinpoint100. Now, we come to the last submission of Shri Rohtagi. Shri Rohtagi submits that Scheduled Tribe Certificate to the members of ‘Gowari’ community was granted after the judgment of the High Court dated 14.08.2018, on the basis of which certificates large number of students have taken admission in different educational institutions taking benefit of Scheduled Tribes as well as employment at various places as Scheduled Tribes candidates which need to be protected by this Court. After the declaration granted by the High Court, the authorities proceeded to grant Scheduled Tribe certificate to the ‘Gowari’ community and it is true that on strength of such Scheduled Tribe certificate, several students must have taken admission in different courses as Scheduled Tribe candidate and persons have also secured employment as Scheduled Tribe candidate. The State of Maharashtra has belatedly filed these appeals which delay in filing these appeals have already been condoned by us H

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A and there being no interim orders in these appeals staying the effect of judgment of the High Court, grant of Scheduled Tribe certificate was natural consequence of the judgment of High Court.

101Copy pinpoint101. We in the ends of justice directs that the admission taken and employment secured by the members of ‘Gowari’ community on the B basis of Scheduled Tribe certificate granted to them between 14.08.2018 till date shall not be affected by this judgment and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them. However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled C Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day.

102Copy pinpoint102. In view of the foregoing discussions, we are of the view that the High Court erred in declaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referred to in item 28 in Entry 18. D

103Copy pinpoint103. In result, we allow the appeals, set aside the impugned judgment of the High Court dated 14.08.2018 and dismiss the writ petitions. Parties shall bear their own costs.

E Divya Pandey Appeals allowed.

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