The Rajasthan High Court dismissed a Public Interest Litigation (PIL) filed seeking directions to correct/update/rectify the updation of the Hindi Version of Nayaka caste as “नायक” on the e-mitra website or any other Government website.
The PIL filed by Akhil Bhartiya Nayak Mahasabha Marwar, further prayed to-
B. By an appropriate writ, order (s) or direction(s), emitra website or any other Government website may kindly be updated as per the version ‘Nayaka (नायक)’ which is notified in the Scheduled Tribe List in the Act of 1976.
C. By an appropriate writ, order (s) Or direction(s), the respondents State may kindly be directed to issue Scheduled Tribe certificate to members of the Nayaka community while considering the Hindi Version “नायक” as correct version for the Nayaka caste.
D. By an appropriate writ, order or direction, any order or notification passed by the respondent Government of Rajasthan in violation of the Schedule II of the Act of 1976 by which any modification/ updation/correction has been made by the respondent Government of Rajasthan without adhering to the Article 342 of the Constitution of India as well as the modalities approved by the Government of India may kindly be quashed and set aside.
It is stated in the petition that in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (hereinafter to be referred as ‘the Act of 1976’) dated 20.09.1976 (in English version) ‘Nayak’ community has been notified in Scheduled Caste List at serial No.57, whereas the ‘Nayaka’ community has been notified in Scheduled Tribe List at serial No.10. It is further mentioned that in Hindi version of Scheduled Caste and Scheduled Tribe List, “नायक” community has been notified in the Scheduled Caste List at serial No.57 and again “नायक” community has been notified in the Scheduled Tribe List at serial No.10.
It is mentioned in the petition that the grievance of the petitioner is that the members of the society and other individuals of the ‘Nayak’ community, living throughout the State of Rajasthan, are the members of the Scheduled Tribes category of the State of Rajasthan and were previously being issued Scheduled Tribes Caste certificate by the concerning authorities but subsequently, due to difference in pronouncing and writing the caste in English and Hindi, the members of the ‘Nayak’ community are now being issued Scheduled Caste certificate instead of Scheduled Tribes certificate.
It is contended that the Tehsildar (Revenue), Bikaner made a communication with the Department of Information Technology and Communication, Government of Rajasthan on 01.10.2012 stating that the ‘Nayak’ Caste in Bikaner District comes in the ambit of Scheduled Caste List, but at serial No.10 of website of Social Welfare Department, the ‘Nayak’ Caste is shown as Scheduled Tribe Category. The Tehsildar referring to the communication dated 27/28.01.2009 made by the Ministry of Tribal Affairs has stated that the Hindi version of ‘Nayaka’ should be “नायका” , instead of “नायक” , which falls under the Scheduled Tribe Category, whereas the ‘Nayak’ Caste falls under the Scheduled Caste category, therefore, the website of Social Welfare Department be corrected, so that wrong caste certificates are not issued to the members of ‘Nayak’ community. It is claimed that acting upon the said communication of the Tehsildar (Revenue), the respondent – Department of Social Justice and Empowerment has modified the entries and now the online caste certificates are being issued to the members of the ‘Nayak’ community treating them as Scheduled Caste and not as Scheduled Tribe.
Manvendra Singh Rathore ,counsel for the petitioner has argued that the change in the website of the Government was made on the basis of a communication received by the Secretary, Department of Social Justice and Empowerment of Government of Rajasthan by the Ministry of Tribal Affairs of Government of India dated 27/28.01.2009.
It is submitted that vide said communication, no modification of spelling of entries in the list of STs of Rajasthan was made but only a clarification was issued, however, without there being any modification in the notification of the list of Scheduled Tribe of Rajasthan, the State Government cannot, on its own, change the status of ‘Nayak’ community from the Scheduled Tribe to Scheduled Caste.
It is argued by counsel for the petitioner that it is settled that the State has no power to amend the presidential orders and the list of Scheduled Caste or Scheduled Tribe can only be changed by adhering to the procedure laid down under Article 342 of the Constitution of India. Learned counsel for the petitioner has placed reliance on decisions of Hon’ble Supreme Court rendered in State of Maharashtra vs. Milind and Ors. reported in (2001) SCC 4 and Dr. Jaishri Laxmanrao Patil vs. Chief Minister and Ors. reported in (2021) 8 SCC 1. Learned counsel for the petitioner has, therefore, prayed that this writ petition may kindly be allowed and the reliefs sought for may be granted in favour of the petitioner.
Having heard counsel for the petitioner and having gone through the material available on record, the Division Bench of Justice Vijay Bishnoi and Justice Praveer Bhatnagar found that the controversy raised by the petitioner in the Petition is already set at rest by a Coordinate Bench of the High Court.
A charitable society has filed a petition in 2013 before the High Court in public interest seeking a direction for the State to issue Scheduled Tribe Certificates to the members of the ‘Nayak’ community of the State of Rajasthan with a further prayer that the respondents be directed to delete the term ‘Nayak’ from serial No.57 of Part XIV of Rajasthan of Schedule-1 of the Constitution (Scheduled Castes) Order, 1950 as incorporated on 20.09.1976, which came into force w.e.f. 22.07.1977 by declaring the same to be violative of Articles 341 and 342 of the Constitution of India. The Division Bench of the High Court vide judgment dated 16.11.2018 has dismissed the said petition while making the following observations:
“…….. In view of the authoritative pronouncement of law by the Supreme Court in Milind and Others, supra, we are inclined to hold that this court is not in a position to declare that ‘Nayak’ community has been wrongly included in the list of Scheduled Castes pertaining to the State of Rajasthan in the Presidential Order, as modified by the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, and should have been included in the list of Scheduled Tribes. Whatever may have been the reasons for inclusion of ‘Nayak’ alongside ‘Thori’ in the list of Scheduled Caste category, this court cannot go into the correctness of the same. As far as the mention of ‘Nayak’ in the Hindi version of the list pertaining to the Scheduled Tribe at serial no.10 of Hindi version appended to the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, it has been authoritatively clarified by the Government of India as would be evident from the letter dated 27th/28th January, 2009 of the Ministry of Tribal Affairs, Government of India, Shastri Bhawan, New Delhi. The Article 348(1)(b) of the Constitution under Chapter XXX provides as “the authoritative text – (ii) of all Acts passed by the Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State; and (iii) of all orders, rules, regulations and byelaws issued under this Constitution or under any law made by the Parliament or the Legislature of a State shall be in the English version”. Therein, ‘Nayak’ has been completely spelt and included in the list of Scheduled Castes, and it has to be taken as the correct version.“
It is also noted by the High Court that the Special Leave Petition of 2019 filed on behalf of the petitioners against the order of the HighCourt dated 16.11.2018 passed in Petition of 2013 also came to be dismissed by the Supreme Court vide judgment dated 27.09.2019.