Supreme Court: In a case where the Bombay High Court declared that tribe “Gowari” is a part of Scheduled Tribe “Gond Gowari” thereby leading to several people taking benefit of Scheduled Tribes for admissions and employment, the bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has held that

“the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.”

The Court, however, 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, as a result of the High Court’s decision, shall not be affected 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.”

On 14.08.2018, Bombay High Court, Nagpur Bench had declared that tribe ‘Gowari’ was a part of Scheduled Tribe ‘Gond Gowari’ and that ‘Gond Gowari’ shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950, is not a sub-tribe of ‘Gond’.

On declaration that “Gond Gowari” 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. The Government of State of Maharashtra, Tribal Development Department has issued G.R. dated 24.04.1985 where the State Government has referred to “Gond Gowari” as small sub-Tribe of Gond and non-Scheduled Tribe caste was referred as Gowari.

“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 with regard to ‘Gond Gowari’ the affinity is more than apparent with ‘Gond’.”

The expression ‘Gond Gowari’ clearly expresses that the community ‘Gond Gowari’ has to do with tribe ‘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 (subtribe of Gond), its affinity with ‘Gond’ cannot be ignored on any basis.

On tribe ‘Gowari’ being declared a part of Scheduled Tribe ‘Gond Gowari’

When the State has expressly 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, the High Court could not have observed that it accepts the view of the Central and State Government that ‘Gowari’ community be included in the Scheduled Tribe Order

Further, the recommendation to include Gowari as a separate Scheduled Tribe was forwarded by the State of Maharashtra in the year 1979 which was withdrawn in 1981 and after 1981 the State’s stand has been that “Gond Gowari” and “Gowari” are two separate castes and Gowari is not entitled for the benefit of Scheduled Tribe certificate.

On extinction of tribe “Gond Gowari” prior to 1911 and only “Gowari” existed

The High Court itself in its judgment noticed and found the mention of “Gond Gowari” in Census of 1891 and 1901. However, the basis of Census in 1911 was changed, and classification was made on the basis of traditional occupation in which group IV was of Forest and Hill Tribes and Group V was of Graziers and Dairymen. The figures of 1911, 1921 and 1931 showed that in Group V Graziers and Dairymen, there was mention of Gowari.

However, mere fact that in Censuses of 1911, 1921 and 1931 figures were given only of Group V, i.e., Graziers and Dairymen and there was no mention of “Gond Gowari” cannot 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.”

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.

Further, 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 Court, hence, concluded that none of the reasons given by the High Court 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.”

[State of Maharshtra v. Keshao Vishwanath Sonone,  2020 SCC OnLine SC 1040, decided on 18.12.2020]

*Justice Ashok Bhushan has penned this judgment

Counsels heard

For State of Maharashtra: Senior Advocate Shyam Divan and advocate Ravindra Keshavrao Adsure,

For Union of India: Additional Solicitor General Sanjay Jain

For Zanaklal Bhaisaku Mangar: Senior Advocate C.U. Singh,

For Respondents: Senior Advocate Mukul Rohatgi and Advocate Bansuri Swaraj

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