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

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 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 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. Statement of Objects and Reasons of The Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1976 clearly indicates that those Scheduled Tribes and Schedules Castes were excluded if only there was no return in respect of Census of 1961 and 1971. Thus, 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 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 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. “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 1911. [Paras 70, 71 and 74][651-E-H; 652-A-B, D-G; 654-C]

2.3 It was after the report of Backward Classes Commission (1955), where recommendation was made to include Gowari as THE STATE OF MAHARASHTRA & ANR. v. KESHAO VISHWANATH SONONE & ANR. 605 sub-tribe of Gond for the State of Madhya Pradesh, consequently by Scheduled Castes and Scheduled Tribes Orders (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 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. 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. The High Court itself has noticed that the Research Officers conducted research and has also found Entry of “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. 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. [Paras 75-78][654-C-H; 655-E- F; 656-A]

2.4 This Court has already noted the Government Resolution dated 24.4.1985 issued by the Tribal Development Department of the 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 A B C D E F G H 606 SUPREME COURT REPORTS [2020] 11 S.C.R. Tribes is to be discarded. 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 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”. The High Court further in paragraph 83 after perusing the records of the Committee found 39 claimants produced the documents 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 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. 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. [Paras 79-81][656- B-D, H; 657-A-D]

2.5 Thus, Question Nos.3 and 4 are answered in the following manner: ANSWER NO.3 The High Court could not have entered into the issue that “Gond Gowari” which was Scheduled Tribe mentioned in A B C D E F G H THE STATE OF MAHARASHTRA & ANR. v. KESHAO VISHWANATH SONONE & ANR. 607 Constitution (Scheduled Tribes) Order, 1950 as amended upto 1976 is no more in existence and became extinct before 1911. A ANSWER NO.4 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. [Para 82][657-E-G]

3.1 QUESTION NO.5 & 6 The caste ‘Gowari’ and ‘Gond Gowari’ are two distinct and separate castes. 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’. The ‘Gowari’ which is another backward community have not been included in the list of Scheduled Tribes in the book published by Anthropological Survey of India, People of India, National Series Volume III on “The Scheduled Tribes’. [Paras 83][657-H; 658- A-B]

3.2 This Court has 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’. The ratio of the Constitution Bench judgment of this Court in Basavalingappa and Bhaiya lal as well as Milindhas also been noticed. 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 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. 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 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. This Court has also noticed the authoritative books on Tribes in Central India that ‘Gond Gowari’ is a sub-tribe of ‘Gond’. In the B C D E F G H 608 SUPREME COURT REPORTS [2020] 11 S.C.R. A B C D E F G H 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 Resolution also mentioned that ‘Gond Gowari’ is also a small sub-tribe of ‘Gond’ tribe. [Paras 86-88][859-B-F]

3.3 With the ‘Gowari’ word ‘Gond’ is prefixed. The expression ‘Gond Gowari’ clearly expresses that the community ‘Gond Gowari’ has to do with tribe ‘Gond’. ‘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. This Court entertains its 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 tribes together in one entry, but 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 be established with Gond by the tribe ‘Gond Gowari’. There is no infirmity in Government Resolution dated 24.04.2984 insofar as Scheduled Tribe ‘Gond Gowari’ is concerned. [Paras 92, 94][661-B-D, F-H; 662-A]

3.4 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’. 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, THE STATE OF MAHARASHTRA & ANR. v. KESHAO VISHWANATH SONONE & ANR. 609 is not a sub-tribe of ‘Gond’. The validity of caste certificate to ‘Gond Gowari’ has to be tested on the basis of affinity test as specified in the Government Resolution dated 24.04.1985. 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 ‘Gond Gowari’ was completely extinct before 1911 having been found to be flawed, the entire basis of judgment is knocked out. [Paras 95, 96][662-B-E]

3.5 When the State has expressly after 1979 written to the 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, there was no error in taking stand before the High Court in the writ petition that ‘Gowari’ are not entitled for Scheduled Tribe Certificate. [Para 98][663-A-B]

#4. In the ends of justice it is directed that the admission taken and employment secured by the members of ‘Gowari’ community on the 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 Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day. The High Court erred in declaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referred to in item 28 in Entry 18.The impugned judgment of the High Court dated 14.08.2018 is set aside and the writ petitions dismissed. [Paras 101-103][664-B-D] State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4 : [2000] 5 Suppl. SCR 65; B. Basavalingappa v. D. A B C D E F G H 610 SUPREME COURT REPORTS [2020] 11 S.C.R.