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Synopsis

The Supreme Court has on July 15, 2024 held the Bihar government's 2015 decision to merge a caste from Extremely Backward Classes with one of Scheduled Castes as patently illegal and erroneous.

The court pointed out that the State Government had no competence/authority/power to tinker with the lists of Scheduled Castes published under Article 341 of the Constitution. 

In a severe rebuke to the state government, a bench of Justices Vikram Nath and Prashant Kumar Mishra said, "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," the bench added.

Dealing with civil appeals filed by Dr Bhim Rao Ambedkar Vichar Manch Bihar, Patna and Ashish Rajak, the court set aside the Patna High Court's judgment of April 3, 2017, which had dismissed the legality of the notification issued on July 1, 2015.

"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 bench said.

The State Government had passed the resolution based upon consideration of recommendations by the State Backward Commission which stated 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. 

Going through Article 341 of the Constitution, the bench, however, said 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 Scheduled Castes.

The court also noted the Article 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.

In the matter, the Union government's Ministry of Social Justice and Empowerment, filed an application for impleadment to clarify a proposal of the State was examined as per settled modalities in consultation with the Registrar General of India, who did not support it.

The Ministry wrote 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'. 

The Bihar government, however, defended the resolution by urging that it is only clarificatory and nothing more; that the statutory and socio historical factors surrounding the controversy warranted 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 and, as such, no fault can be found with the resolution.

It also said the recommendation made by the State Commission is binding on the State and judicial review in such matters may not be permissible except in an extreme case of perversity or otherwise. 

The state government also said all those members of “Tanti-Tantwa” community, who had derived advantage or benefit of Scheduled Castes under the Certificates issued to them pursuant to the resolution may not be adversely affected and may be protected on the principles of equity and good conscience.

After having examined the matter, the bench said, "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 court further said the submission of the respondent State that resolution 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," the bench said.

The court observed 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 bench said.

On submission that the recommendation of the Commission was binding, the bench said it was beyond the panel's jurisdiction 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," the bench said.

With regard to a plea for protection of appointments, the bench said, "Any person not 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, the court said, since it found fault with the conduct of the State and not of any individual member of the “Tanti Tantwa” community, it did 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.

"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 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," the court directed.