State not authorised to tinker with SC lists: Apex court quashes Bihar's 2015 notification
As per Article 341 neither Centre, nor the President can make any amendments or changes in the notification issued under Clause-1 without a law made by the Parliament, specifying the castes in relation to the States or Union territory, as the case may be
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New Delhi: The Supreme Court has quashed a 2015 notification of the Bihar government by which it had deleted 'Tanti-Tantwa' caste from the Extremely Backward Classes (EBC) and merged it with 'Pan/Sawasi' caste in the Scheduled Castes list.
A bench of Justices Vikram Nath and Prashant Kumar Mishra said the State government had no competence or authority to tinker with the lists of Scheduled Castes published under Article 341 of the Constitution. The Scheduled Castes list specified under the notification under Clause-1 can be amended or altered only by a law made by the Parliament, the bench said.
It said as per Article 341 neither Centre, nor the President can make any amendments or changes in the notification issued under Clause-1 without a law made by the Parliament, specifying the castes in relation to the states or Union territory, as the case may be. "We have no hesitation in holding that the resolution dated July 1, 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 bench said in its verdict pronounced on Monday.
It added that the submission of the State government that resolution dated July 1, 2015 was only clarificatory is not worth considering for a moment and deserves outright rejection. "Whether or not it (Tanti-Tantwa caste) was synonymous or integral part of the Entry-20 ('Pan/Sawasi' caste) of the lists of Scheduled Castes, it could not have been added without any law being made by the Parliament," it said.
The bench said the Bihar government knew very well that it had no authority and had accordingly forwarded its request to the Centre in 2011 for inclusion of 'Tanti-Tantwa' in the list of Scheduled Castes as a synonym of 'Pan, Sawasi, Panr'. "The said request was not accepted and returned for further comments/ justification/review. Ignoring the same, the State proceeded to issue the circular dated July 1, 2015," it said. The bench said the State government 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".
It said 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 done by law made by the Parliament, and not by any other mode or manner. "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 EBC. Whether or not to include or exclude any caste in the list of EBC would be within the domain of the Commission," it said.
The bench further stated that the Commission would have no jurisdiction to make recommendation with 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," the bench said. It said the Patna High Court fell in serious error in upholding the 2015 notification on a completely wrong premise without referring to Article 341 of the Constitution.
"The impugned resolution dated July 1, 2015 is, hereby, quashed," the bench ruled. It said the action of the State is found to be mala fide and de hors the constitutional provisions and 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 deserving and not covered by such a 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," it said.
The top court said since it has found fault with the conduct of the State and not of any individual member of the 'Tanti-Tantwa' community, it does 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 July 1, 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," it said.
