Full Judgment Text
2024 INSC 528
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.18802 OF 2017
DR. BHIM RAO AMBEDKAR VICHAR
MANCH BIHAR, PATNA …APPELLANT(S)
VERSUS
THE STATE OF BIHAR & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO……..OF 2024
(ARISING OUT OF SLP(CIVIL) NO. 18294 OF 2021)
ASHISH RAJAK …APPELLANT(S)
VERSUS
THE STATE OF BIHAR & ORS. …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
1. Application(s) for intervention/impleadment is/are
allowed.
2. Leave granted in SLP (CIVIL) No. 18294 of 2021.
3. These two appeals assail the correctness of the
Signature Not Verified
rd
judgment and order dated 3 April, 2017 passed by
Digitally signed by
SONIA BHASIN
Date: 2024.07.15
18:45:40 IST
Reason:
the Division Bench of the Patna High Court whereby
CIVIL APPEAL NO.18802 OF 2017 Page 1 of 25
a group of four (4) writ petitions and one Letters
Patent Appeal were decided by a common judgment
dismissing all the five cases. The challenge in the
writ petitions and the appeal before the Division
Bench of the High Court was to a Notification dated
st
1 July, 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. The operative part
of the Resolution as contained in the aforesaid
Notification dated 01.07.2015 is reproduced
hereunder in the original Hindi language:
"
अत: राज्य सरकार ने भली-भांतत विचारोपरांत तनर्णय ललया
है कक वपछडे िर्गो के ललए राज्य आयोर्ग की उपयणक्त सलाह
के आलोक में बिहार पदो एिां सेिाओ की ररक्क्तयो में
,
आरक्षर् (अनयसूचचत जाततयो अनयसूचचत जनजाततयो एिां
1991
अन्य वपछडे िर्गो के ललए) अचितनयम की अत्यांत
CIVIL APPEAL NO.18802 OF 2017 Page 2 of 25
1) 33
वपछडे िर्गो की सूची (अनयसूची- के क्रमांक- पर दजण
"तांती (ततिा)” जातत को विलोवपत कर ददया जाए ताकक
20
तांती (ततिा) को अनयसूचचत जातत की सूची में क्रमांक-
पर दजण पान/स्िासी के साथ समािेशन पर अनयसूचचत जातत
का लाभ लमल सके।"
4. The challenge in the writ petitions and the LPA
before the Division Bench was to the second part of
the said Resolution quoted above whereby “Tanti-
Tantwa” caste was sought to be merged with Entry-
20 of the Scheduled Castes list namely, the caste of
'Pan/Sawasi' and to extend all benefits of the
Scheduled Castes.
5. The challenge 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
CIVIL APPEAL NO.18802 OF 2017 Page 3 of 25
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,
“Tanti-Tantwa”
therefore, rightly deleted 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.
6. The High Court accepted the submissions of the
respondents, as noted above and, accordingly,
dismissed the writ petitions as also the LPA, filed by
the appellants vide impugned judgment dated
03.04.2017.
rd
7. It is this order of the High Court dated 3 April, 2017
which is under challenge in the present two appeals.
8. We have heard Smt. Indira Jai Singh, learned Senior
Counsel appearing for the appellants in both the
appeals, Sri Ranjeet Kumar, learned Senior Counsel
for the respondent-State of Bihar, Sri Salman
Khurshid, Sri Rakesh Dwivedi and Sri V. Giri,
CIVIL APPEAL NO.18802 OF 2017 Page 4 of 25
learned Senior Counsel for the intervenors and Ms.
Aishwarya Bhati, learned Additional Solicitor
General for the Union of India.
9. We will now deal with the following aspects in order
to arrive at a just and proper conclusion.
(1) What the Constitution of India provides regarding
preparation of list for Scheduled Castes for different
States.
(2) How a list declared under the Presidential Order can
be altered, modified or amended.
(3) What does the Constitution provide regarding the
Backward Classes for every State.
(4) 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.
(5) What the State decides regarding the Backward
Classes.
(6) The correspondence between the State of Bihar and
the Central Government/Union of India.
(7) The stand of the Union of India before the High Court
and before this Court.
(8) The arguments advanced on behalf of the appellants,
respondents and the intervenors.
(9) Analysis of the arguments.
(10) Conclusion.
CIVIL APPEAL NO.18802 OF 2017 Page 5 of 25
10. “Scheduled Castes” is defined in the Constitution
under Article 366(24) thereof. It reads as follows:
“366(24). "Scheduled Castes" means such
castes, races or tribes or parts of or groups
within such castes, races or tribes as are
deemed under article 341 to be Scheduled
Castes for the purposes of this Constitution.”
11. 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
CIVIL APPEAL NO.18802 OF 2017 Page 6 of 25
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.”
12. 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.
CIVIL APPEAL NO.18802 OF 2017 Page 7 of 25
13. Another aspect to be noted from a plain reading of
the above Article 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.
14. The Constitution (Scheduled Castes) Order, 1950
th
was first notified on 10 August, 1950 and
published in the Gazette of India, Extraordinary on
th
11 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
CIVIL APPEAL NO.18802 OF 2017 Page 8 of 25
16. Musahar
17. Nat
18. Pan
19. Pasi
20. Rajwar
21. Turi”
15. 'Pan Caste' was specified as a Scheduled Caste
throughout the State of Bihar under the above
notification mentioned at Serial No.18.
16. 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' .
17. In the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Bill, 1967 enacted by the
th
Parliament in the 20 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.
18. The next Amendment then came was the Scheduled
Castes and Scheduled Tribes Orders (Amendment)
CIVIL APPEAL NO.18802 OF 2017 Page 9 of 25
th
Act, 1976 was enacted by the Parliament in the 27
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
'Pan, Sawasi'
that in the 1956 Amendment i.e. .
19. By the Constitution (Scheduled Castes) Orders
(Second Amendment) Act, 2002 enacted by the
rd
Parliament in the 53 year of the Republic of India,
Entry 20 for the State of Bihar was substituted by
'Pan, Sawasi, Panr' .
20. Article 338-B of the Constitution provides that the
State Government may establish Commission for
Backward Classes.
21. 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.
CIVIL APPEAL NO.18802 OF 2017 Page 10 of 25
22. Further, the legislature of the State of Bihar 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.
23. The Ministry of Social Justice and Empowerment,
Union of India has filed an application for
impleadment and has made its stand clear in the
said application, which is supported by an affidavit
and is registered as IA No.100468 of 2024. In
paragraph 8 of the said application, it is stated 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
(in short '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. It further mentions that the
CIVIL APPEAL NO.18802 OF 2017 Page 11 of 25
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. Paragraph-9
further mentions 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 01.07.2015.
24. Paragraph 10 clearly states that under Article 341 of
the Constitution and the Constitution (Schedule
Castes) Order, 1950 and its Amendments, “Tanti-
Tantwa” Caste, which does not appear in the list of
Scheduled Castes of Bihar cannot be issued
Scheduled Castes Certificates treating them to be
'Pan, Sawasi, Panr' at Serial No.20 of the list of
Scheduled Castes of Bihar. 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
CIVIL APPEAL NO.18802 OF 2017 Page 12 of 25
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.
Paragraph nos.13, 14 and 15 support the
submissions of the appellants in assailing the
correctness of the impugned judgment of the High
rd
Court dated 3 April, 2017. Thus, the Union of India
has fully supported the appellants.
Submissions on behalf of the appellants.
25. Ms. Indira Jai Singh referring to the Constitutional
provisions contained in Articles 366(24) and 341
submitted that the impugned Notification/
Resolution dated 01.07.2015 cannot stand and
needs to be quashed, as the State Government had
no competence power or Authority to direct the
inclusion of “Tanti-Tantwa” in the lists notified
under Article 341. According to her, any amendment
or change in the specified lists of Scheduled Castes
CIVIL APPEAL NO.18802 OF 2017 Page 13 of 25
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.
26. It was also submitted on behalf of the appellants
that the State was fully aware that it had no
authority or competence to amend the list as it had
itself written to the Central Government for
inclusion of “Tanti-Tantwa” in Entry-20 of the list
of Scheduled Castes for the State of Bihar along with
'Pan, Sawasi, Panr' . The said request of the State
Government made in the year 2011, was not
accepted in view of the comments made by the RGI
in January, 2013 and the same were duly
communicated to the State vide letter dated
31.01.2013. By the said letter, it was also requested
that the State may further review and provide
further justification in support of their request for
including “Tanti-Tantwa” in the lists of Scheduled
Castes. The State chose not to give any reply to the
same and instead in a totally mala fide manner in
order to illegally extend benefit to the “Tanti-
Tantwa” castes, it issued the Notification dated
01.07.2015 whereby “Tanti-Tantwa” castes were to
be treated as Scheduled Castes and extended all
benefits. The State has to be put to strict proof to
explain, as to why, they had directed for merger of
CIVIL APPEAL NO.18802 OF 2017 Page 14 of 25
“Tanti-Tantwa” in the lists of Scheduled Castes
with 'Pan, Sawasi, Panr' .
27. It is also the submission of Ms. Jai Singh that the
Notification dated 01.07.2015 cannot be severed so
as to retain its first part of deleting/removing
“Tanti-Tantwa” from the list of Extremely
Backward Classes notified under the 1992 Act and
to quash the second part only, which directed for
merger of “Tanti-Tantwa” with 'Pan, Sawasi Panr'
at Entry-20 of the Scheduled Castes lists for the
State of Bihar. According to her, if the impugned
Notification is partly quashed and partly upheld,
then the caste “Tanti-Tantwa” would be left
nowhere and would not be entitled to any
reservation or benefit either as Extremely Backward
Class or as Scheduled Caste. She, thus, submitted
that the impugned notification is non-severable and
deserves to be quashed as a whole.
28. She has further submitted that request of the State
of Bihar as also the Intervenors to continue to extend
the benefits already granted during this period to the
members of the “Tanti-Tantwa” caste, should not
be accepted. According to her, the exercise by the
State of issuing the Notification dated 01.07.2015
was clearly mala fide and deliberate mischief on its
part. The continous issuance of Scheduled Castes
CIVIL APPEAL NO.18802 OF 2017 Page 15 of 25
Certificates to the members of “Tanti-Tantwa”
community despite repeated directions by the
Central Government not to issue such certificates
clearly reflects the defiance of the State Government
not to correct itself rather continue with impunity to
issue certificates and treat them as Scheduled Caste.
29. In the process of issuing such certificates and
extending benefits of Scheduled Castes, the State
has deprived the genuine members of the Scheduled
Castes community covered under the lists published
under Article 341, which should be restored back to
the Scheduled Caste community. She also referred
to an order dated 22.11.2021 passed by this Court
in the appeal filed by Ashish Rajak, wherein this
Court had clearly provided that all appointments are
subject to the outcome of these proceedings.
30. She further submitted that members of “Tanti-
Tantwa” community may be extended benefits
available to them under the Extremely Backward
Classes by the State of Bihar, but under no
circumstances, should such members of “Tanti-
Tantwa” community, who have benefited under the
completely illegal and exercise of the State,
mala fide
be allowed to continue on a reserved seat of the
Scheduled Caste taking advantage of the Resolution
dated 01.07.2015.
CIVIL APPEAL NO.18802 OF 2017 Page 16 of 25
31. She has also very fairly submitted that she would
not have any objection to the State not making any
recovery from the beneficiaries of such illegal
appointments and in accommodating such
candidates under the Extremely Backward Class
quota/reservation but in no case should such
candidates be allowed to withhold the seats reserved
for the Scheduled Castes which should be forthwith
returned to the Schedule Castes for the benefit of the
notified castes only.
32. On the other hand, Sri Ranjeet Kumar, learned
Senior Counsel appearing for the State of Bihar tried
to justify the Resolution dated 01.07.2015 by urging
that the Resolution is only clarificatory and nothing
more; that the statutory and socio historical factors
surrounding the controversy warrant that “Tanti-
Tantwa” be treated as synonymous with 'Pan,
Sawasi' . The State has only acted on the
recommendation of the State Commission for
Extremely Backward Classes dated 02.02.2015 and,
as such, no fault can be found with the resolution of
the State. He has further referred to the following
socio historical factors and other statutory
provisions considered by the Commission while
making the recommendation:
CIVIL APPEAL NO.18802 OF 2017 Page 17 of 25
“A. In Chapter 11, Para 11.3 of the first
report of the Backward Commission,
Personnel Department, Backward
Commission, Pan is mentioned as Tanti.
th
B. In the 10 Report of 1978-80 of the Bihar
Legislative Assembly for the welfare of
Scheduled Castes and Scheduled Tribes,
the committee accepted the report of
Mungeri Lal Aayog in which it was reported
that the persons called Tanti are actually
Pan and hence entitled to benefits granted
to the Scheduled Castes.
C. In 1967, a bill was placed before the
Parliament, in which it was proposed in the
context of Bihar State that
Pan/Swasi/Tanti/Tatwa should be
enlisted in the Scheduled Castes for the
State of Bihar but the same was not
appreciated by the Parliament.
D. The report of Kaka Kalekar Backward
Commission recommended to the State that
the caste Tanti/Tatwa should be
incorporated with Pan.
E. The Department of Personnel
Administrative Reforms and Rajbhasha,
Jharkhand vide its letter No.1107 dated
01.03.2004 on the basis of the report of
Jharkhand Tribal Welfare and Research
CIVIL APPEAL NO.18802 OF 2017 Page 18 of 25
Institute requested the Home Ministry,
Government of India, that Tanti/Tatwa and
Pan are the same caste and hence should
be considered as a synonym of Pan/Swasi.
F. In the book “ Tribes and Caste of
Bengal” by HH Rizley, pg. 155, it is
mentioned that Pan/Swasi and Tanti are
synonymous and come from the Weaver
community.
G. The synonymity between these
castes were further ascertained by the
ethnographic report prepared by A.N. Sinha
Institute, Patna.
H. The social conditions and cultural
backgrounds of these castes are the same,
and it is the usual practice to establish
matrimonial relations among them.
I. A similar finding is found in the
Central Government report.
J. The National Backward Commission,
now a Constitutional Body, has also
recommended for deletion of Tanti/Tantwa
from the list of Backward Classes as they
are synonymous of Pan/Sawasi.”
33. His further submission is that recommendation
made by the State Commission is binding on the
State and Judicial review in such matters may not
CIVIL APPEAL NO.18802 OF 2017 Page 19 of 25
be permissible except in an extreme case of
perversity or otherwise. He also referred to the
recommendation of the National Commission for
Backward Classes made on 29.03.2022 regarding
“Tanti-Tantwa” 'Pan, Sawasi'
synonymity of with .
Lastly, it was submitted that in the event this Court
agrees with the submissions of the appellants and
decides to quash the Resolution dated 01.07.2015,
then the benefits/rights already accrued to the
members belonging to the caste of “Tanti-Tantwa”
as Scheduled Castes may not be affected on the
principles of equity and good conscience. Reliance
was placed upon a judgment of this Court in the
case of State of Maharashtra Vs. Keshao
1
Vishwanath Sonone . In particular, reliance was
placed upon paragraphs 115 & 116 of the said
judgment having a coram of three Hon'ble Judges.
34. Lastly, it was submitted that as the matter is still
pending for consideration before the Union of India
based on the recommendations of the National
Commission for Backward Classes dated
29.03.2022, direction may be issued to Union of
India to take a decision within a fixed timeframe and,
in the meantime, the present appeals may be kept
pending.
1
(2021) 13 SCC 336
CIVIL APPEAL NO.18802 OF 2017 Page 20 of 25
35. Insofar as the private respondents and other
intervenors are concerned, their submission is akin
and in support of the submission of Mr. Ranjeet
Kumar to the effect that all those members of
“Tanti-Tantwa”
community, who had derived
advantage/benefit of Scheduled Castes under the
Certificates issued to them pursuant to the
Resolution dated 01.07.2015 may not be adversely
affected and may be protected on the principles of
equity and good conscience.
36. Having considered the submissions advanced, 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
CIVIL APPEAL NO.18802 OF 2017 Page 21 of 25
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.
37. The submission that the recommendation of the
Commission for Extremely Backward Classes was
binding on the State, is not a question to be
determined here, inasmuch as, even if we accept the
submission, such recommendation could relate only
to the Extremely Backward Classes. Whether or not
to include or exclude any caste in the list of
Extremely Backward Class would be within the
domain of the Commission. The Commission would
have no jurisdiction to make recommendation with
CIVIL APPEAL NO.18802 OF 2017 Page 22 of 25
respect to any caste being included in the Scheduled
Castes lists and, even if it makes such a
recommendation, right or wrong, the State has no
authority to proceed to implement the same when it
was fully aware that the Constitution does not
permit it to do so. 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.
38. 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.
39. Now comes the question with regard to protecting
those Members of “Tanti-Tantwa” community who
were extended benefit of Scheduled Castes pursuant
to the Resolution dated 01.07.2015. In the present
case, the action of the State is found to be mala fide
and de hors the constitutional provisions. The State
cannot be pardoned for the mischief done by it.
Depriving the members of the Scheduled Castes
covered by the lists under Article 341 of the
Constitution is a serious issue. Any person not
CIVIL APPEAL NO.18802 OF 2017 Page 23 of 25
deserving and not covered by such list if extended
such benefit for deliberate and mischievous reasons
by the State, cannot take away the benefit of the
members of the Scheduled Castes. Such
appointments would under law on the findings
recorded would be liable to be set aside. However, as
we have found fault with the conduct of the State
and not of any individual member of the “Tanti-
Tantwa” community, we do not wish to direct that
their services may be terminated or that recovery
may be made for illegal appointments or withdrawal
of other benefits which may have been extended. We
are of the view that all such posts of the Scheduled
Castes reserved quota which have been extended to
the members of the “Tanti-Tantwa” community
appointed subsequent to the Resolution dated
01.07.2015 be returned to the Scheduled Castes
Quota and all such members of the “Tanti-Tantwa”
community, who have been extended such benefit
may be accommodated under their original category
of Extremely Backward Classes, for which the State
may take appropriate measures.
40. Accordingly, the Appeals succeed and are allowed.
41. The impugned Resolution dated 01.07.2015 is,
hereby, quashed.
CIVIL APPEAL NO.18802 OF 2017 Page 24 of 25
42. It is further 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.
43. Pending applications, if any, disposed of.
……………………………………J.
(VIKRAM NATH)
……………………………………J.
(PRASHANT KUMAR MISHRA)
NEW DELHI
JULY 15, 2024
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