DEVI LAL KHANT Vs. STATE AND ORS.

JUDGEMENT

(1.) This writ petition has been preferred by petitioner-Devi Lal Khant inter alia with the prayer that all the certificates issued to candidates or any other candidate belonging to 'Meena' community be declared beyond the purview of Scheduled Tribes notification dated 20.9.1976 and further that action of the respondents in allowing any such candidate to participate in the election be declared illegal and treating candidates belonging to 'Meena' community as member of the Scheduled Tribe being declared null and void. It is further prayed that respondents be directed to make strict compliance of the notification dated 20.9.1976 and not to allow persons belonging to 'Meena' community to contest elections scheduled to take place on 1.12.2013 at Bamanwas constituency. According to the averments in the petition, petitioner is resident of Nawa Ghara and his name is included in the voter list of Vidhan Sabha Constituency, Gadhi. He belongs to Scheduled Tribe category, being 'Bhil' by caste. Petitioner filed nomination for contesting elections of Member, Rajasthan Legislative Assembly scheduled to take place on 01.12.2013 from Bamanwas constituency, District Sawaimadhopur. He has been set up as a candidate of Samajwadi party. Nine other candidates are also contesting elections from the said constituency as per the list published on the website of Election Commission of India by Chief Election Officer, Rajasthan.

(2.) Shri Sanjeev Prakash Sharma, learned senior counsel for the petitioner has argued that the Government of India has issued a notification dated 20.09.1976 wherein, it has notified Scheduled Tribe castes in the State of Rajasthan, which includes 'Mina' at S.No.9 and not 'Meena'. Even in Hindi version of the notification dated 20.9.1976 '' and not '' has been included as member of Scheduled Tribe. Learned senior counsel invited attention of the Court towards both English and Hindi versions of the aforesaid notification which are placed at Annexure-4 and 5. It is contended that Ministry of Tribal Affairs, Union of India in reply to the Writ Petition No. 1862/2013, titled Captain Gurvinder Singh & Ors. v. State of Rajasthan & Ors. filed before this Court at page 708 has clarified this position that 'Meena' community is not listed in the list of Scheduled Tribes of Rajasthan. In fact, 'Mina' community has been notified as Scheduled Tribe and appeared at S.No.9 of the notification in the State of Rajasthan. Copy of the reply to the aforesaid writ petition has been placed on record. Learned senior counsel further contended that petitioner has obtained reply to the query made under Right to Information Act from Union of India, Ministry of Tribal Affairs dated 26.10.2013 wherein he has been informed that in State of Rajasthan 'Meena' is not a Scheduled Tribe. Learned senior counsel has in support of his arguments relied on the constitution bench judgment of the Supreme Court in State of Maharashtra v. Milind & Ors., 2001 1 SCC 4 and argued that it is not permissible to hold an inquiry or letting in any evidence to decide or declare that any tribe or tribal community or part of, or group within, any tribe of tribal community is included in the general name mentioned in an entry even though it is not specifically mentioned in the Constitution (Scheduled Tribes) Order, 1950. The Scheduled Tribe Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. It is not open to the State Governments or courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.

(3.) Learned Senior counsel then argued that the State Government contrary to the Scheduled Tribes Order has issued Scheduled Tribe certificates to members of the 'Meena' community, which is wholly unconstitutional. Reference is made to certificate issued to one Brajraj Meena of Tagore Nagar, Tehsil Ladpura District Kota. Reference is also made to the certificate dated 18.4.2013 issued by Tehsildar, Kathumar to one Munesh Kumar Meena describing as 'Mina', wherein name of his father has been mentioned as Ram Dayal Meena. Learned senior counsel submitted that person who are from 'Meena' community are being shown in the official list published by Chief Election Officer, Rajasthan on his website as those who are contesting election from the Bamanwas constituency as Scheduled Tribe candidate. The certificates issued to as many as ten candidates describing themselves as 'Meena' have been collectively placed on record at Annexure-11. It is contended that petitioner has submitted representation to the Returning Officer and the District Election Officer for rejection/cancellation of nomination of the persons belonging to 'Meena' community, but the same has not been adjudicated till date and the nomination of persons not belonging to Scheduled Tribe category were accepted for contesting election.