New Delhi: The Supreme Court has said the Bihar government cannot be pardoned for the mischief done by it and depriving the members of the Scheduled Castes covered by the lists under Article 341 of the Constitution is a serious issue, while setting aside state's decision to remove the Tanti-Tantwa caste from a list of Extremely Backward Classes to merge it with the Pan/Sawasi caste in the Schedule Caste list.
A bench of Justices Vikram Nath and Prashant Kumar Mishra said whether synonymous or not, 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 the state government and the Centre had no competence or authority or power to tinker with the lists of Scheduled Castes published under Article 341 of the Constitution.
The top court quashed a resolution made on July 01, 2015 by the Bihar government stating that an extremely backward caste "Tanti-Tantwa” be merged in the Scheduled Castes list with the caste 'Pan/Sawasi'.
"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," said the bench, in its judgment delivered on July 15.
The bench said the Bihar government’s submission that the 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”, said Justice Nath, who authored the judgment on behalf of the bench.
Justice Nath said 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”, he added.
The top court said, in the present case, the action of the state is found to be mala fide and dehors 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”, it said.
The bench, citing Article 341, said from a plain reading of the 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 the 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”, said the apex court.
The bench directed the state to return the SC quota posts on which appointments of the Tanti-Tantwa community were made and they should be reverted back to Extremely Backward Classes.
The bench said 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. "Such appointments under law on the findings recorded would be liable to be set aside," it said.
The apex court made these observations while allowing appeals filed by Dr Bhim Rao Ambedkar Vichar Manch Bihar, Patna, and Ashish Rajak against the Patna High Court's order of April 3, 2017. The High Court had dismissed the plea challenging the validity of the 2015 notification.
The state government had argued that the resolution was only clarificatory and nothing more and that the statutory and socio-historical factors surrounding the controversy warrant that "TantiTantwa" 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," said the Bihar government’s counsel.
