Supreme Court of IndiaPrabhat Kumar Sharma vs Union Public Service Commission & Ors on 19 October, 2006Equivalent citations: 2006 AIR SCW 5379, 2007 (1) AIR JHAR R 578 2006 (10) SCC 587, 2006 (10) SCC 587, (2006) 48 ALLINDCAS 112 (SC), (2006) 10 SCALE 472, (2007) 2 JCR 27 (SC), (2007) 1 SUPREME 820, (2007) 1 ALL WC 98Bench:Ashok Bhan,Markandey KatjuCASE NO.:
Appeal (civil)  5483 of 2000

PETITIONER:
Prabhat Kumar Sharma					

RESPONDENT:
Union Public Service Commission & Ors.    	

DATE OF JUDGMENT: 19/10/2006

BENCH:
ASHOK BHAN & MARKANDEY KATJU

JUDGMENT:J U D G M E N T
With

Writ Petition (C) No.   173  of 2002 
and 
Writ Petition (C) No. 488 of 2000 

BHAN, J.This judgment shall dispose of Civil Appeal No. 5483 of 
2000 and Writ Petition Nos. 173 of 2002 and 488 of 2000 filed 
underArticle 32of the Constitution of India.   Point involved 
in all these cases being the same, they are disposed of by a 
common judgment.The facts are taken from Civil Appeal No. 5483 of 2000.
	This appeal has been filed by a member of "Lohar" 
community from the State of Bihar.  "Lohars" are being treated 
as Other Backward Classes whereas he claims to be a member 
of Scheduled Tribes under the Scheduled Castes and 
Scheduled Tribes Order.  The point in issues is concluded 
against the appellant by a judgment of this Court inNityanand Sharma and Another Vs. State of Bihar and 
Others, 1996 (3) SCC 576.The appellant seeks to get the 
judgment  in the case ofNityanand(supra)  referred to a larger 
Bench by contending thatthe said judgmentis wrong and 
needs reconsideration.Prabhat Kumar Sharma, the appellant herein, was a 
candidate for the Civil Services Examinations held during the 
years 1991, 1992, 1993 & 1994.  He claimed to belong to 
"Lohar" community, which according to him was a Scheduled 
Tribe in the State of Bihar.  While considering the candidature 
of the appellant and while verifying his claim as belonging to 
Scheduled Tribe in the State of Bihar, the Union Public Service 
Commission prime facie came to the conclusion that the 
"Lohar" community was not included in the list of Scheduled 
Tribes for the State of Bihar issued by the Government of 
India.  The Commission addressed a communication to the 
Deputy Commissioner, Ranchi to ascertain if "Lohar" 
community was recognized as a Scheduled Tribe in Bihar.  The 
Deputy Commissioner in his reply indicated that "Lohar" 
community in the Bihar was recognized as "Backward Class"only and not as 'Schedule Tribe".  In the light of this, the 
appellant was asked by the Commission to clarify the latest 
position in respect of the community claim.  
	The appellant thereafter filed Writ Petition No. 2600 of 
1992 in the High Court of Patna at Ranchi for a direction to 
the State Government to issue him a caste certificate as 
'Scheduled Tribe' on his being a member of "Lohar"community.  The Court directed the Deputy Commissioner, 
Dhanbad to issue a provisional caste certificate describing the 
appellant as "Lohar" belonging to the Scheduled Tribe with the 
stipulation that the same shall be subject to the final result of 
the writ petition pending in the High Court.     The Bench 
issued an interim direction on 18.02.1993 directing the 
Commission to permit the appellant to appear in the 
examination provisionally as a member of the "Lohar" 
community as a 'Scheduled Tribe'.   As per interim directions 
issued by the High Court, the Commission treated the 
appellant along with 4 other candidates similarly placed as 
belonging to Scheduled Tribe provisionally, subject to proving 
their claim.  The performance of these candidates including 
the appellant in the Civil Services (Main) Examination, 1994 
was assessed on relaxed standards meant for Scheduled Tribe 
candidates.  The result of the written part of the Civil Services 
(Main) Examination, 1994 was declared by the Commission on 
27.04.1995 and none of the five candidates including the 
appellant could qualify the written examination on the basis of 
their performance even as Scheduled Tribe candidates.  The 
appellant had earlier failed to qualify the Civil Services (Main) 
Examination for the year 1993 even though he was treated as 
Scheduled Tribe candidate provisionally. 
	Writ Petition  came up for final hearing in July, 1999.  
The Single Judge of the High Court in its judgment dated 
5.7.1999 held that the question, as to whether "Lohar" was a 
Scheduled Tribe in the State of Bihar stands concluded by a 
judgment of this Court inNityanand's case (supra) and 
accordingly held that "Lohar" community is "Other Backward 
Class" (OBC) and not a Scheduled Tribe.The appellant being aggrieved filed letters patent appeal 
in the High Court which has been dismissed by the impugned 
order.Under the Constitution (Scheduled Tribes) Order, 1950 
issued in exercise of powers conferred underArticle 342 (a)of 
the Constitution of India, at S. No. 20 the tribe "Lohara" was 
mentioned as a Scheduled Tribe for the State of Bihar.  The 
first Backward Classes Commission was set up in the year 
1953 known as the Kaka Kalelkar Commission.  According to 
the report of the Kaka Kalelkar Commission, amongst the list 
of Backward Classes, "Lohar" was shown at S. No. 60.  
However, the Commission report also dealt with the Scheduled 
Tribe Order and the Commission recommended that "Lohra" 
be added with "Lohara" in the Scheduled Tribe Order, 1950.  
	After the Kaka Kalelkar Commission report, theScheduled Castes and Scheduled Tribes Order (Amendment) 
Act, 1956was enacted which was brought into force with 
effect from 25.09.1956 and for Bihar, entry 20 was substituted 
to read as "Lohara" or "Lohra".  Thus, right upto 1976 there 
was no ambiguity in the Scheduled Tribe Order as only 
"Lohara" was initially considered as a Scheduled Tribe and 
with effect from 1956 "Lohara" as well as "Lohra" were 
mentioned as Scheduled Tribe.In the year 1976 theScheduled Castes and Scheduled 
Tribes Order (Amendment) Act, 1976was passed and in the 
English version of the same, viz. entry 22 the position as 
existing from 1956 was maintained.  "Lohara" and "Lohra" 
were stated to be Scheduled Tribes.  However, in the Hindi 
translation of the said entry "Lohara" was translated as 
"Lohar".  Thus the Hindi translation had "Lohar" and "Lohra" 
as two Scheduled Tribes.  After the 1976 Amendment, 
members of the "Lohar" community started claiming 
themselves to be members of Scheduled Tribe even though 
they had been identified as a backward class as early as in the 
year 1955 by Kaka Kalelkar Commission.Because of the ambiguity in the Hindi translation of the 
1976 Scheduled Tribe Order, members of "Lohar" community 
claimed themselves to be members of Scheduled Tribe.  The 
first litigation which came to the Supreme Court on this 
subject was Civil Appeal No. 4631 of 1990 in the case ofShambhu Nath Vs. Union of India & Another.   This came up 
for hearing before three Judges of this Court.  This Court 
disposed of the appeal  on 12.9.1990 by passing the following 
order:-" Special Leave granted.The short point raised in this appeal is as to 
whether the Central Administrative Tribunal was right 
in holding that the appellant did not belong to the Lohar 
community which has now been declared as a 
Scheduled Tribe in Chapra District of Bihar.  It is not in 
dispute that from 1976 onwards the community has 
been so included but according to the Postal 
Department of Union of India, at the time when the 
appellant entered service, the community had not been 
so included and, therefore, the recruitment on the 
footing that he was a member of a scheduled Tribe 
entitled to reservation was bad.We have looked into the record and have heard 
counsel for the parties.  In view of the accepted position 
that Lohar community is included in the Scheduled 
Tribe from the date of amendment of the list in 1976 
and the dispute as to whether the community was 
known as "Lohar" or "Lohra" and if it was the latter, it 
has been so included from before, we do not think the 
Tribunal was justified in holding the view it has taken.
	The appeal is allowed and the order of the 
Tribunal is vacated.  The appellant shall now return to 
duty.  The period between 16.12.1986 when the order 
removing him was made and the date when he would 
join in terms of our declaration now he shall be entitled 
to 50% of his salary.  In regard to all other service 
benefits, his service shall be treated to be continuous.  
This decision may not be taken as a precedent.  No 
costs."[Emphasis supplied]
	It may be noted that at that point this Court did not 
notice the discrepancy between the English and the Hindi  
translation of the Scheduled Tribes Order and proceeded on 
the premise that "Lohar" being mentioned in the Hindi version 
of the Order, the appellant  was entitled to get the benefit of 
being a Scheduled Tribe.  Even the counsel appearing on 
behalf of the Union of India did not point out to the Court the 
discrepancy and the order was passed treating the "Lohars" as 
members of the Scheduled Tribe.  Rather the Union of India 
accepted the position that "Lohar" community is included in 
the Scheduled Tribe.  This order was passed by the Court 
without any contest.The question regarding the claim of "Lohar" community 
to be considered as Scheduled Tribe came up before this Court 
inNityanand Sharma's case (supra), which was initially listed 
before the two Judge-Bench which upon being showen the 
case ofShambhu Nath(supra) thought it fit to refer the matter 
to three Judges.Incidentally, one of the Judges in the case ofNityanand Sharma(supra) was also a party to the decision in 
the case ofShambhu Nath(supra).The Court inNityanand 
Sharma's case (supra) examined in detail as to whether there 
were three castes/tribes by the nomenclature of "Lohar", 
"Lohara" and "Lohra" or whether "Lohar" and "Lohara" were 
one and the same thing and if "Lohar" and "Lohara" were two 
different castes/tribes then which one of them would qualify 
as a tribe or whether both will qualify as Scheduled Tribe.   
The Court after noticing the ambiguity existing in the Hindi 
translation of 1976 Scheduled Tribe Order held that whereas 
"Lohara" and "Lohra" belonged to the Scheduled Tribe, the 
"Lohars" in State of Bihar belonged to the Other Backward 
Classes.The Court was called upon to declare as to whether the 
Hindi translation was correct or original English text was 
correct.  For this limited purpose the Bench looked into the 
authoritative ethnographic survey conducted in India by H.H. 
Risley.  From the said survey the Court observed that "Lohar" 
is a sub-caste of Barhai who work in iron.  In Risley's 
Ethnographic Glossary the "Lohar" community has been dealt 
with in great detail.  In the same Glossary "Lohara" and 
"Lohra" are mentioned as tribe of Chota Nagpur.   The Court 
took notice ofArticle 348 (1)(b)of the Constitution of India 
which provides that the authoritative text of all bills to be 
introduced or amendments thereof to be moved in either 
House of the Parliament shall be in English language.  The 
Bench after a detailed and considered judgment held that the 
original version which was in English was the authoritative 
text whereas the Hindi was the translated version.  It was 
concluded that in the Hindi version there was some defect in 
the translation because of which the "Lohar" community had 
been claiming the advantage of being a "Scheduled Tribe"when actually they were only a backward class and thus could 
not be given the benefit of reservation as a Scheduled Tribe.  It 
was further held by  thatSambhu Nath's case (supra) could 
not be treated as authoritative in point as the same was based 
on concession.After Nityanand Sharma's judgment (supra), an effort 
was made by the members of the "Lohar" community to claim 
themselves as Scheduled Tribe and the matter came up to the 
Supreme Court.  A bench of two judges inVinay Prakash & 
Ors. Vs. State of Bihar, 1997 (3) SCC 406, by a speaking 
order  reaffirmed the view taken in theNityanand Sharma's 
case (supra) and held that there was no question of the 
"Lohar" community being given the benefit of being Scheduled 
Tribe.The bench refused to refer the case ofNityanand 
Sharma's (supra) to a larger bench.This is the second 
attempt being made by the members of the "Lohar" community 
to get the decision inNityanand Sharma's case (supra) re-
opened and referred  to a larger bench for reconsideration.  
There is no dispute on the proposition that if the 
Presidential Notification does not contain any specific class or 
tribe or a part of, then it is for the Parliament to amend the 
law  and the Schedule  and include in and exclude from the 
Schedule,  a tribe  or tribal community or part of or group 
within any tribe or tribal community for the State.  The Courts 
must read the lists of Schedule Castes  and Schedule Tribes 
underArticle 341and342read withArticle 366 ( 24)and(25)as they find them and accept their ordinary meaning.  Neither 
the Government nor the judiciary can add or subtract to the  
List of Scheduled Castes and Scheduled Tribes.  But, the 
Court would have  the limited jurisdiction to the extent of 
finding out whether the Community which claims the status 
as Scheduled Caste or Scheduled Tribe,  was, in fact, included 
in the Schedule concerned. To that limited extent, the court 
would have the jurisdiction but, otherwise, the court is devoid 
of power to include in or exclude from or substitute or declare 
synonyms to the Scheduled Caste or Scheduled Tribe or parts 
thereof or group of such castes or tribes.Shri Rajeev Dhavan, learned senior counsel appearing for 
the appellant has contended thatNityanand's case  (supra)  
was wrongly decided because:(a)	Nityanand's case was relied on social data selected 
by the Judges whereas such selection was 
prohibited by law;(b)	Nityanand's case  failed to take into consideration 
the Hindi Text which was authoritative in its own 
language.We do not find any substance in the submissions made 
by Shri Rajeev Dhavan.InNityanand's  case this Court 
examined in detail as to whether there were three casts/tribes 
by the nomenclature Lohra,  Lohara  and Lohar  or whether 
Lohar and Lohara were one and the same thing and if Lohar 
and Lohara were two different castes/tribes then which one of 
them would qualify as a tribe or whether both will qualify as a 
tribe. This Court after detailed consideration came to the 
conclusion that the ambiguity was caused  because of Hindi 
translation of  the 1976 Scheduled Tribe Order.   The Court 
was called upon to declare as to whether the Hindi translation 
was correct or the original English text was correct.   For this 
limited purpose the Court looked at the Ethnographic Survey 
conducted in India by H.H. Risley.  After taking into 
consideration the said survey, the Court observed that Lohar 
is a sub-caste of Barhai who works in iron.   In Risley's 
Ethnographic Glossary  the Lohar Community has been dealt 
with in great detail.  In the same Glossary Lohara and Lohra 
are mentioned as tribes of Chota Nagpur.   The Court did not 
refer to or rely upon the text of Risley to include or exclude a 
caste in the Presidential Order or amend or alter the 
Presidential Order.   Risley's survey was examined to remove 
the ambiguity which had crept in because of the contradictory 
entries in English and Hindi versions of the Presidential Order.The Court after taking notice ofArticle 348 (1) (b)of the 
Constitution of India which provides that the authoritative text 
of all Bills to be introduced or amendments  thereof to be 
moved in either House of the Parliament shall be in English 
language came to the conclusion that the Hindi version was a 
translated  version  and the original version was the 
authoritative text and in the Hindi version there was some 
defect in translation because of which Lohar Community had 
been claiming the advantage of being a Scheduled Tribe when 
actually they were only a backward class and thus could not 
be given the benefit of reservation as a Scheduled Tribe.   It 
was observed inNityanand's  case (supra)

"19.Article 348(1)(b)of the Constitution 
provides that notwithstanding anything 
in Part II (in Chapter IIArticles 346and347relate to regional languages) the 
authoritative text of all bills to be 
introduced and amendments thereto to 
be moved in either House of Parliament 
..of all ordinances promulgated by the 
President.....and all orders, rules, 
regulations and bye laws issued under 
the Constitution or under any law made 
by the Parliament, shall be in the English 
language. By operation of sub-article (3) 
thereof with a non obstante clauses, 
where the Legislature of a State has 
prescribed any language other than the 
English language for use in Bills 
introduced in, or Acts passed by, the 
legislature of the State or in Ordinances 
promulgated by the Governor of the State 
or in any order, rule regulation or bye-law 
referred to in paragraph (iii) of that sub- 
clause, a translation of the same in the 
English language published under the 
authority of the Governor of the State in 
the official Gazette of that State shall be 
deemed to be the authoritative text 
thereof in the English language under 
this article. Therefore, the Act and the 
Schedule thereto are part of the Act, as 
enacted by the Parliament in English 
language. It is the authoritative text.When the Schedules were translated into 
Hindi, the translator wrongly translated 
Lohara as Lohar omitting the letter 'a' 
while Lohra is written as mentioned in 
English version. It is also clear when we 
compare Part XVI of the Second Schedule 
relating to the State of West Bengal, the 
word Lohar both in English as well as in 
the Hindi version was not mentioned.Court would take judicial notice of Acts of 
Parliament and would interpret the 
Schedule in the light of the English 
version being an authoritative text of the 
Act and the Second Schedule."We are in the respectfully agreement with the view taken 
inNityanand's  case.Learned senior counsel  appearing for the appellant 
contends that after the coming into force of theOfficial 
Languages Act, 1963the Hindi version was the authoritative 
text and in the case of ambiguity between Hindi and English 
versions, the Hindi version would prevail.Article 348of the 
Constitution clearly provides English to be the authoritative 
text in respect of Acts of Parliament, amendment to Acts 
subject to any law made by the Parliament.The Official 
Languages Act, 1963videSection 3thereof provides for 
continuance of English language for official purposes of  Union 
and for use in Parliament.Section 5provides for a Hindi 
translation of all Central Acts and Ordinances promulgated by 
the President or if any order or rule or regulation or bye-laws 
issued under the Constitution or under any Central Act.Section 6deals with State Act with which we are not 
concerned in the instant case.  From the conjoint reading ofArticle 348of the Constitution andSections 3and5of the 
Official Languages Act, 1963, English continues to remain the 
authoritative text in respect of the Acts of Parliament.An attempt was made to get the judgment inNityanand's  
case re-opened and considered by the larger Bench inVinay 
Prasad's case (supra).   Shri Rajeev Dhavan, learned Senior 
counsel appearing for the appellant in the instant case 
incidentally was the counsel in the said case as well.Submission similar to the one which has been made before us 
had been made inVinay Prasad's case (supra) case as well.  
The Division Bench rejected the said contention.We are in 
agreement with the view taken in theVinay Prasad's case 
(supra) as well.For the reasons stated above we do not find any merit in 
the civil appeal and the writ petitions and dismiss the same 
with costs throughout.