"It is not open for the courts to deduce from historical data, proceed to gather evidence, and continue to apply this on its own to arrive at a conclusion which is different from the Presidential Order", ASG Sanjay Jain, for the UOI, told the bench, also comprising Justices R. Subhash Reddy and M. R. Shah.
"The principal ground of the Union's challenge is the High Court's substitution of its own wisdom for the Parliament. The centerpiece of our objection is to the High Court holding that the reference to Gond Gowari in the 1956 Presidential Order must mean the Gowari tribe", continued the ASG.
"It is not open to the court to examine evidence in this regard", he pressed.
Relying on the 1990 Supreme Court authority in Srish Kumar Choudhury v. State of Tripura, he quoted the observations of the top court: "...the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. It is, however, not open to the Court to make any addition or subtraction from the Presidential Order"
"The High Court has stated that the community Gowari has to be substituted for Gond Gowari. This deletion from or addition to the Presidential Order is not permissible at the instance of the court", urged the ASG.
Next, he referred to the constitution bench decision in Palghat Jilla (1993), reciting therefrom that "These judgments leave no doubt that the Scheduled Castes Order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. No action to modify the plain effect of the Scheduled Castes Order, except as contemplated by Article 341, is valid" The ASG also placed reliance on other constitution bench authorities in Bhaiyalal, Basavalingappa and State of Maharashtra v. Milind to buttress his submission.
There was also a discussion on the April 24, 1985 Government Resolution issued by the state of Maharashtra prescribing the guidelines by way of affinity test to judge the claims of the Gowari community: On 24-4-1985, the Tribal Department of the State Government issued a resolution prescribing therein the guidelines on the basis of which the caste certificates of the Scheduled Tribe of (a) real tribals, and (b) non-tribals are to be considered. It accompanied a table showing comparative chart of non-tribal castes/tribes, who can possibly obtain the caste certificates illegally, taking the advantage of their similar nomenclature as to that of Scheduled Tribes or its sub-tribes or similar tribes. Item No.8 in the table pertained to Entry No.18 Gond Gowari in the Scheduled Tribes Order of the State, which states that it is a small community of the Gond tribe and there is no separate population of this community, but it is included in the Gond population. This community is found in Kurkheda taluka of Gadchiroli district and the Gond people amongst the Gond community, who keep the cattle, are locally called as Gond Gowari. It states that in the year 1901, its population was about 3,000, and since their original tribe is Gond, their dialect, social tradition, sect, tradition and religious culture are that of Gondi. Their family, race, sect, family deity and surnames are similar to those Gond people In the column of non-tribal caste/tribe in the aforestated table, who can possibly obtain the caste certificate showing the similar nomenclature as to that of Scheduled Tribe, sub-tribe or similar tribe, the names of Gowari, Gawara, Gai-Gowari, Dudh-Gowari are the entries. In the column of ordinary place of residence, the population and general particulars of non-tribal caste/tribe, it is stated that the population of Gowari caste is nearly 2,00,000, and this caste is mainly spread in Nagpur, Amravati, Wardha, Yavatmal, Bhandara, Chandrapur and Gadchiroli districts. In the last column of the table, which pertains to 'remark', it is stated that Gowari and its sub-castes have no social relation with Gond. There is no similarity in social, cultural, etimological and family traits, characteristics and customs, and Gowaris are taking advantage of the benefits available to Gond Gowaris on the basis of their similarity in the surnames.
In the impugned judgment, the High Court had further directed:
(3) The tribe Gond Gowari shown as 28th Item in Entry No.18 of the said Order is not a sub-tribe of Gond and, therefore, the claim for its validity cannot be tested on the basis of the guidelines in respect of affinity test specified in the Government Resolution dated 24-4-1985.
(4) The people belonging to Gowari community in the State of Maharashtra cannot be denied the benefits of the Scheduled Tribes, merely because the Gowari community is shown in the list of Special Backward Classes in relation to the State of Maharashtra in the Government Resolutions dated 13-6-1995 and 15-6-1995 and as Other Backward Class category in the Gazette Notification dated 16-6-2011 issued by the Government of India in the common Central list in respect of the State of Maharashtra.
(5) The order dated 13-1-2007 passed by the Scheduled Tribes Certificate Scrutiny Committee at Amravati, invalidating the claim of the petitioner- Keshao s/o Vishwanath Sonone in Writ Petition No.1742 of 2007, is hereby quashed and set aside. The said matter is remanded back to the Scrutiny Committee to decide it afresh in the light of the decision of this Court.