SUNIL KUMAR RAI Vs. STATE OF BIHAR
LAWS(SC)-2022-2-128
SUPREME COURT OF INDIA
Decided on February 21,2022

SUNIL KUMAR RAI Appellant
VERSUS
STATE OF BIHAR Respondents


Referred Judgements :-

GOVT. OF A.P. V. BALA MUSALAIAH [REFERRED TO]
STATE OF MAHARASHTRA & ANR. V. KESHAO VISHWANATH SONONE & ANR [REFERRED TO]
B BASAVALIGAPPA VS. D MUNICHINNAPPA [REFERRED TO]
BHAIYA LAL VS. HARIKISHAN SINGH [REFERRED TO]
NILABATI BEHERA ALIAS LAUTA BEHERA VS. STATE OF ORISSA [REFERRED TO]
STATE OF KARNATAKA VS. KUMARI GOWRI NARAYANA AMBIGA [REFERRED TO]
NITYANANDSHARMA VS. STATE OF BIHAR [REFERRED TO]
VINAY PRAKASH VS. STATE OF BIHAR [REFERRED TO]
PRABHAT KUMAR SHARMA VS. UNION PUBLIC SERVICE COMMISSION [REFERRED TO]
ASSAM SANMILITA MAHASANGHA VS. UNION OF INDIA [REFERRED TO]
PRATHVI RAJ CHAUHAN VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

K.M. Joseph, J. - (1.)This is a writ petition maintained under Article 32 of the Constitution of India. The petitioners, four in number, seek reliefs which read as follows:-
"A Issue appropriate writ, order or direction in the nature of certiorari quashing the notification number 689 of 2016 dtd. 23/8/2016 issued by Respondent No.1 in Bihar Gazette;

B Issue an appropriate writ, order or direction, directing the Government of Bihar to pay compensation to the petitioners due to illegal, unconstitutional notification of government of Bihar Bihar on the basis of FIR registered under wrong provision of SC and ST Act.

C Or pass any other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the above said case."

(2.)The impugned notification is dtd. 23/8/2016, which reads as follows:-
"BIHAR GAZETTE

Extraordinary Marks

Published by Government of Bihar

1 Bhadra 1938 (Sh)

No Patna 689, Patna, Tuesday, 23/8/2016

General Publication Department

From

Rajender Ram,

Chief Secretary of Government,

To all Chief Secretary of all departments, all divisional Commissioner, all District Magistrate, the Secretary of Bihar Public Service Commission, Patna, Secretary of Bihar Staff Selection Commission, the Secretary Central Secretary Board (Constable recruitment, Patna, the controller of Examination Bihar Combined Entrance Competitive, Examination Board, Patna, Registrar, office of advocate General Patna High Court, and Secretary of Bihar State Election Authority, Patna)

Patna- 15 dated 08/August/2016

Subject:- In regard to issue Scheduled Tribe Certificate and other facility to Lohara (Lohar) community.

Sir,

1 As per order in the above said subject it is stated that Lohara, Lohra (Lohar, Lohara) was mentioned at Item No.22 in the list of the Constitution Scheduled Caste and Scheduled Tribe order amendment Act 1976 which has been listed at item No.21 as Lohara, Lohra by the Constitution Scheduled Tribe order Amendment Act, 2006 (Act No.48 of 2006).

2 In this regard, it is worth mentioning that the Constitution Scheduled Caste Scheduled Tribe orders amendment Act 2006 No.48 of 2006 has been repealed by the Repealing and Amendment Act 2016 (Act No.23 of 2016) Parliament. Hence in the above stated situation and in the light of the constitution Scheduled Caste and Scheduled Tribe Order amendment Act 1976 (Act No.108/1976) approval is given to issue caste of certificate of Scheduled Tribe Certificate and other facility to Lohara (Lohar) Community.

Faithfully

Rajender Ram

Additional Secretary of Government"

(Emphasis supplied)

(3.)The case of the petitioners, in a nutshell, is as follows:-
The Lohar community in Bihar is not entitled to be treated as members of the Scheduled Tribe. The matter relating to Scheduled Tribes is governed by Article 342 of the Constitution. Invoking Article 342, it is the case of the petitioners that the original Order was issued by the President in 1950. Thereunder Lohars were not treated as members of the Scheduled Tribe. In fact, they were contemplated as members of Other Backward Class (for short 'OBC'). This position continued from the year 1970 till 1976 when an amendment took place at the hands of Parliament. The position, however, as to Lohars not being entitled to be treated as Scheduled Tribe did not undergo any transformation. Thereafter, in the year 2006, Act No.48 of 2006 came to provide as follows:-

"An Act further to amend the Constitution (Scheduled Tribes) Order, 1950 to modify the list of Scheduled tribes in the State of Bihar. BE it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows: -

1. This Act may be called the Constitution (Scheduled Tribe) Short Title Order Amendment Act, 2006.

2. The Gazette of India Extraordinary Part II-Sec 1]

Amendment of the Constitution (Scheduled Tribes) Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.

2. In the Constitution (Scheduled Tribes) Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, in the Schedule, in Part III relating to Bihar, for item 22 (Since renumbered as item 21), as appearing in the Hindi version of the said Act, the following shall be substituted, namely: -

"21. Lohara, Lohra".



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