D.P. Singh, J.
1. The present election petition has been preferred by the petitioner for declaring election of the sole respondent, the returned candidate from 10-Dumka Assembly Constituency reserved for scheduled tribe category as null and void.
The petitioner's case is as under:
i. That he as a voter from the Dumka assembly constituency, had filed his nomination paper to contest election of assembly seat held in the year 2005. However, his nomination paper was rejected illegally by the Returning Officer-cum-S.D.M., Dumka on 7.2.2005.
ii. That illegal rejection of the nomination paper filed by the petitioner was just to help the returned candidate and was against the provisions of law.
iii. That the petitioner being 'Lohar' by caste had been declared scheduled tribe in Part III list of scheduled tribes at Sl. No. 22 for the State of Bihar by the President of India under Article 342 of the Constitution of India.
iv. That recognition of 'Lohar'/'Lohra' otherwise spelt as 'Lohar' by different authorities, which describes 'Lohar' as scheduled tribe and synonyms to 'Lohra' as well as 'Lohara' have been ignored and his nomination paper was illegally rejected.
v. That the petitioner has got valid documents in support of his claim as scheduled tribe with caste certificate issued by B.D.O. and SDM, Dumka vide certificate No. 65 dated 11.1.1994.
Accordingly, the petitioner has prayed that election of opposite party be declared null and void.
2. The sole respondent Sri Stephen Marandi, sitting MLA from Dumka reserved constituency filed a detailed written statement refuting the claims made in the Election Petition. According to Sri Marandi, the present election petition lacked adequate details even for admission of the present petition. According to him the petitioner has got no cause of action and the present petition was liable to be dismissed under Order 7 Rule 11 of C.P.C. as well as Section 86(1) of the Representation of Peoples Act, 1951 (hereinafter referred to as 'the Act'). Further the present petition was barred under the principles of res judicata and constructive res judicata as on same facts and reason his nomination paper for the year 1995 Assembly Elections was also rejected. The petitioner had then filed Election Petition No. 2/95 before the Patna High Court, which was ultimately dismissed declaring 'Lohars' of the backward community and not member of scheduled tribe. The respondent relied upon decision of Apex Court in Nitya Nand Sharma and Ors. v. The State of Bihar : [1996]2SCR1 , wherein Lohra/Lohara' have been held to be different from 'Lohars'. As such rejection of nomination paper filed by the petitioner was correct and in accordance with law. It is also asserted that by not impleading Returning Officer of Dumka Constituency as party in the present petition, mandatory requirements under Section 82 of the Act was lacking. The petitioner belonged to 'Lohar' community and cannot be held to be Scheduled Tribe and his nomination paper was rightly rejected by the Returning Officer on 7.2.2005.
3. In Hindi version dated 6.6.1997 of the Election Manual issued by the State of Bihar wrongly described 'Lohar' as Scheduled tribe and the petitioner taking advantage of that wrongly translated version obtained a caste certificate in his favour. However, the matter has been set at rest in Nityanand Sharma's case (Supra) declaring that 'Lohar' community belonged to other backward class and they were not Scheduled tribes. As such, the question whether ''Lohar'' is synonyms to ''Lohra' or not need no investigation now and the impugned order dated 7.2.2005 need not be interfered with. It further mentions that the State of Bihar, Personnel Administrative Reforms Deptt. Subsequently vide letter No. 43 dated 23.3.1996 already directed all concerned to cancel such caste certificate issued in favour of 'Lohars' declaring them as Scheduled tribes. As such caste certificate No. 65 dated 11.1.1994 automatically stood cancelled. Accordingly, the petitioner having no valid ground to file Election Petition, deserves to be dismissed with heavy costs.
4. Following issues would be relevant to decide this petition:
(I) Has the petitioner got a valid cause of action?
(II) Whether the present election petition is liable to be dismissed summarily for non compliance of the provisions of Section 82 and 83 of the Representation of People's Act, 1951?
(III) Whether petitioner was declared member of Scheduled Tribes in the State of Jharkhand being 'Lohar' by caste?
(IV) Whether order of the returning officer dated 07.02.2005 is, illegal and bad in law?
(V) Whether the question that 'Lohar' and 'Lohra' are synonyms to each other, is any more res-integra after decision of the Apex Court in Nityanand Sharma and Anr. v. The State of Bihar reported in : [1996]2SCR1 ?
(VI) Whether the present Election Petition is barred by principles of Resjudicata and constructive Resjudicata in view of dismissal of Election petition No. 2 of 1995 by Patna High Court between the same parties having decided that petitioner was not a member of Schedule Tribe and his nomination paper was therefore rightly rejected?
5. From the pleadings on record, it is apparent that the moot point to be decided in this election petition vide issue No. 4 remains if the rejection of the nomination paper of the petitioner on 7.2.2005 by the Returning Officer is malafide and unjust to prevent him from contesting the assembly election of the year 2005. For better appreciation of the facts on record, I propose to take up issue No. 3, 5 and 6 together.
Undisputedly constituency No. 10-Dumka (ST) of Jharkhand State is reserved for scheduled tribes community. The petitioner claiming himself 'Lohar' had filed his nomination papers to contest the election of the year 2005. The Returning Officer, during scrutiny of the nomination papers found and held that the petitioner coming from 'Lohar' community was not scheduled tribe and accordingly his nomination papers were rejected. Fact remains that the petitioner has attached his caste certificate dated 11.1.1994 alongwith his nomination papers. However the Returning Officer on the basis of notification issued by Administrative Reforms Department No. 43 dated 23.3.1996 did not accept it. The petitioner's counsel stressed before me that once a caste certificate was issued it could not have been rejected by the Returning Officer. It was further contended that in the Hindi version of the Notification of the State Government published in the year 1976 clearly mentions 'Lohar' as well as 'Lohra' as scheduled tribes. In support this contention, photo copy attested by the Assistant Controller (Business) Government of India, Department of Publication has been brought on record. In the photo copy of this gazette published as extra ordinary publication in November 1979 at page 652 in Part-3 shows the list of castes/community declared to be scheduled tribes by the President of India. At serial No. 22 'Lohar'/'Lohra' and at serial No. 28 'Santhal' as the scheduled tribes. According to the learned senior counsel Sri B.P. Singh, once the President has been pleased to declare 'Lohar' as scheduled tribes, the 'Lohar' community has to be accepted as scheduled tribes. Therefore the Returning Officer during scrutiny should not have rejected the nomination papers on the basis of a circular issued by the State of Bihar in the year 1996.
6. The fact remains that the President of India under Article 342 of the Constitution of India is sole authority to declare any community as scheduled castes and scheduled tribes. It is also admitted fact on record that Part-III of the Schedule of Constitution of India and the Scheduled Castes and Scheduled Tribes Orders (Amendment Act), 1976, English version shows in the list only 'Lohra'/'Lohara' and not 'Lohar'. However the petitioner's counsel stressed that in such circumstances the authorized Hindi Version should prevail which has been published under the authority from the President.
7. Contra to this, Sri Manjul Prasad, Senior counsel for the respondent submitted that this controversial fact whether Hindi version or English version of original list of the scheduled tribes shall prevail has been decided finally in Nitya Nand Sharma's case. The incorrect Hindi version, which had given occasion to many frivolous petitions filed by the 'Lohar' community separately claiming the benefits of scheduled tribes, have now been finally settled by the Hon'ble Apex Court. It is further submitted that Nitya Nand Sharma's case has been further relied upon in 2007 AIR SCW 770 and 2008 (1) JLJR 133. My attention was drawn towards the State Re-Origination Act 2000 by which the State of Jharkhand was separated from the State of Bihar. In this Re-Orgination Act, the name of the scheduled tribes; at serial No. 2 shows only 'Lohara'/'Lohra' as scheduled tribes and not 'Lohar'. In this context, the learned Counsel appearing for the sole respondent submitted that the petitioner has asserted this fact even during the election of the year 1995 wherein his nomination papers were rejected on the same ground that 'Lohar' community is not included in the scheduled tribes community. It was pointed out that the matter was agitated up to the Patna High Court which was finally withdrawn by the petitioner and dismissed in the light of the decision in Nitya Nand Sharma's case. Therefore the question does not arise to accept 'Lohar' as scheduled tribes particularly in the facts of this case where this matter has been agitated by the petitioner earlier in election petition No. 2 of 1995 before the Patna High Court. It is submitted that in this order, it has been mentioned that in view of the Nitya Nand Sharma's case, the petitioner preferred to withdraw the election petition. Therefore the decision rendered in Nitya Nand Sharma's case is applicable and binding upon the petitioner.
8. Sri B.P. Singh, Senior counsel for the petitioner submitted that the facts of Nitya Nand Sharma's Case and the present petition are different. According to him even if the petitioner preferred to withdraw the election petition No. 2 of 1995, it was not binding upon him nor it can act as res judicata in the present case. Sri Singh differed on this point saying that Nitya Nand Sharma's case has not considered Shambhu Nath Case in which the Hon'ble Apex Court has decided that 'Lohar' community stands included in scheduled tribes category. Therefore, the decision cited by the respondent in Nitya Nand Sharma's Case may not be binding upon the petitioner. Sri Singh further placed reliance on the decisions reported in AIR 1989 SC 1933, AIR 1992 (2) SCC 124, AIR 2002 SC 296, AIR 2002 SC 1652, AIR 2005 SC 162. Sri Singh further stressed that in Sambhunath's case their Lordships have clearly held that 'Lohar' is scheduled tribe which has been further relied upon by Full Bench of Patna High Court in Harisharan Thakur case 1994 (2) PLJR 540. Therefore the Returning Officer having relied upon Nitya Nand Sharma's case has acted illegally, rejecting the nomination papers of the petitioner. Sri Singh further pointed out that the returned candidate has described himself his religion as 'Christan' and in accordance with the gazetteer 'Santhal' having converted to Christianity have been held not 'Santhals'. As such, the nomination papers filed by the sole respondent should also have been rejected.
9. Sri Singh further submitted that once the petitioner's caste 'Lohar' having been included in the Hindi Version of the gazette which is synonyms to 'Lohara' in English version of the gazette, the Returning Officer has no authority to conclude that 'Lohar' was not scheduled tribes. In this context, Sri singh relied upon AIR 2005 SC 162 wherein the Constitution Bench of the Hon'ble Apex Court held that Presidential list of scheduled castes is final and it cannot be disturbed by the State legislature. The facts in the above case was that the State of Andhra Pradesh as per recommendation of Justice R. Raju (retired) published a list of group of scheduled castes of Andhra Pradesh in four categories for the purpose of reservation and benefit going to those identified groups. The said publication was challenged and ultimately came before the Hon'ble Apex Court for necessary directions. The Constitution Bench held that State Legislature or its Executive has no power to disturb the list once published under Article 14, 15, 16 and 341 of the Constitution of India, Scheduled-6 list-2 for the State of Andhra Pradesh. Sri Singh, accordingly, relying upon this decision stressed that the list published by the President showing 'Lohar' in Hindi version Synonyms of 'Lohara' in English version, could not be disturbed even by the Apex Court.
10. Admittedly the list of scheduled castes and scheduled tribes published by the Union of India in consultation with the Parliament and the State Government is final. It is also admitted fact on record that 'Lohar' has not been included in the said list under schedule- II, Entry-22 in English version of the gazette till 1976 when Hindi version of the said list was published showing therein 'Lohar' and 'Lohra' as one of the scheduled tribes. On the basis of this, their Lordship in Shambhu Nath's case held that the petitioner was a scheduled tribes though not having been appointed initially as scheduled tribes. Relying upon the said decision, Patna High Court in Harisharan Thakur's case held petitioner being Lohar was scheduled tribe.
11. According to Sri Manjul Prasad senior counsel for the respondent, taking benefit of this, 'Lohar' community started claiming benefits of reservation in appointments as well as promotions afterwards. Consequently, the State Government issued directions that provisional caste certificate may be issued in favour of 'Lohars' showing them as scheduled tribes while the matter was taken up before the Apex Court in Nitya Nand Sharma's case. It is submitted that in Nitya Nand Sharma's case three Judges Bench having considered all the aspects and Shambhu Nath's case as well as Harisharan Thakur's case finally laid down that the Hindi version published by the Union of India showing 'Lohar' as scheduled tribes was not correct translation of the words 'Lohara'. Their Lordships have further held that 'Lohar' are other backward classes and they cannot be given the benefit of scheduled tribes. Accordingly, the castes certificate issued in favour of the petitioner on 11.1.1994 did not hold good when he filed his nomination papers during the elections of the year 1995. This fact has been admitted and conceded by the petitioners in Election Petition No. 2 of 1995 wherein the said Election Petition was dismissed being withdrawn and the learned Counsel for the petitioner conceded that Nitya Nand Sharma's case was applicable in the case of the petitioner. Therefore the contention raised by the petitioner again by filing this Election Petition is no more res integra. According to Sri Prasad, the submissions made by the learned Counsel for the petitioner on the basis of Shambhu Nath's case and Harisharan Thakur's case are therefore no more tenable and requires no fresh consideration.
12. I have carefully gone through the pleadings and evidence available on the record and the nomination papers filed on behalf of the petitioner and sole respondent marked as Ext. - 1 series which clearly mentions in the column-(D) of Part-3 that the petitioner declared himself as a member of the S.T. 'Lohra' at page 3 and page 8 in two sets of the nomination papers. The castes certificate attached along with these nomination papers vide annexure-3 shows the castes of the petitioner 'Jati- Lohar' and thereafter 'Anusuchit JanJati'. This caste certificate has been issued on 11.1.194 vide issue No. 65. So far the nomination papers of the sole respondent is concerned it mentions 'Santal' a scheduled tribe vide Ext.- 10 page-19 in part-3. The petitioner had admitted in his evidence as P.W. 1 that he belonged to scheduled tribe. According to him the Returning Officer scrutinized his papers not in accordance with the election manual and rules rather he tried to help the sole respondent and accepted the nomination papers though he has shown him to be 'Santal' not 'Santhal' which does not come in the list of scheduled tribe. However he has admitted in cross examination that the castes entered in the Survey records is 'Lohar' and Ext.- 3 also mentions his castes as 'Lohar'. Witnesses examined on behalf of the petitioner P.W. 2, 3, 4 and 5 have submitted that the petitioner belong to 'Lohar' community which professes black smithy for generation. Thus it remains that the petitioner belongs to 'Lohar' caste who generally professes black smithy.
13. Thus from the materials available on the record it is apparent that the petitioner is by caste 'Lohar' and not 'Lohra'. 'Lohar' has been included in the list of other backward classes. The caste certificate dated 11.1.1994 further describes the caste of the petitioner as 'Lohar' included in the list of scheduled tribes. In support of this, my attention has been drawn towards the Hindi version of the Extra Ordinary gazette published by the Union of India on 29.11.1979 by the Ministry of Law, Justice and Company Affairs duly attested by the Assistant Controller (Business) Government of India, Department of Publications, Civil Lines, Delhi at page-652 showing the list of scheduled tribes chapter-1 Constitution (Scheduled Tribes) Orders, 1950 in which the list of such scheduled tribes at part-III for Bihar serial No. 22 specifically mentioned 'Lohar/Lohra'. According to Sri Singh, this aspect has been considered by the Apex Court in Shambhu Nath's case and followed by the Division Bench of Patha High Court in Harisharan Thakur case. Therefore the rejection of the nomination paper by the Returning Officer was not legal and valid. Thus the fact remains that the petitioner is claiming the status of scheduled tribes on the basis of his being 'Lohar' included in the list of translated Hindi version of the list published by the Union of India mentioned before.
14. Contrary to this, Sri Manjul Prasad, counsel appearing on behalf of the sole respondent stressed that the confusion whether the Hindi version of the list of scheduled tribe as published in the Extra Ordinary gazette has been finally clarified in Nitya Nand Sharma's case. According to Sri Manjul Prasad, since the matter has been set at rest that 'Lohar' of Bihar erstwhile are not scheduled tribes, the action of the Returning Officer was justified. According to him, the petitioner himself having accepted the above decision while withdrawing the Election Petition No. 2 of 1995 before the Patna High Court on 11.7.1996, the contention of the petitioner is not maintainable being barred by way of constructive res judicata.
15. Before considering this aspect it would be appropriate to go through the decisions citied by the learned Counsel for the petitioner. In : [1992]1SCR151 Kanoria Chemicals and Ors. v. State of U.P., whereas it was held that the Hindi version of the amended act be deemed to be authenticated. According to Sri Singh this view has been further confirmed by the decision of the Constitutional Bench in (2001) AIR 393 in State of Maharastra v. Milind and Ors. that the list of the scheduled castes and scheduled tribes are final for the purpose of determining the question which castes belongs to such scheduled castes and tribes. As such any decision contrary to such list could not have been the basis of rejection of nomination papers. Sri Singh further relied upon : AIR2005SC162 , wherein their Lordships in the Constitution Bench had further laid down that State Legislature or its Executive had no power to disturb the list of such tribes and castes once included in the Presidential list. Therefore the Hindi version which mentions caste of the petitioner 'Lohar' as one of scheduled tribes of Bihar shall be treated as correct.
16. Mr. Manjul Prasad, submitted that the argument advanced on behalf of the petitioner are of no consequence because the said Hindi version wrongly mentioned 'Lohara' of English as 'Lohar' in Hindi has been considered by their Lordships Nitya Nand Sharma's case. Mr. Manjul Prasad further pointed out that earlier decisions in Shambhu Nath's case and Harisharan Thakur's case have been considered by their Lordships in Nitya Nand Sharma's case and finally concluded that due to wrong translated version of the list of scheduled tribes in the Hindi Publication, the 'Lohar' community tried to get the benefit of the scheduled tribes community, declaring 'Lohar' as one of the backward community.
17. The certified copy of Shambhunath's case and Harisharan Thakur's case have been attached by the petitioner and available on the record. In SLP 5684 of 1990 arising out of Civil Appeal No. 4631 of 1990 their Lordships while granting special leave to the petitioner Shambhunath observed as follows:
We have looked into the records 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 ' Lohara' and it is was the latter, it had been so included from before, we do not think the Tribunal was justified in holding the view it has taken.
18. The Division Bench of Patna High Court in C.W.J.C. No. 1034 of 1991 vide order dated 28.2.1992 relying upon Shambhu Nath's case and quoting above mentioned para observed:
In view of the aforesaid judgment, now it is clear that the controversy regarding 'Lohar' and 'Lohra' has now come to an end from the date of amendment of the list in 1976 as per the Presidential Notification contained in Annexure-6'
19. All these aspects have been considered by their Lordships in Nitya Nand Sharma's case reported in (1996) 3 SCC 576. The said application was preferred by the petitioner for getting himself declared a scheduled tribe and promotion on that basis in the cadre of teachers. In the said case the petitioner asserted that 'Lohar' community was included in the scheduled list under the Act reflected in the Hindi version of the Order and further that such claims have been accepted by the Hon'ble Apex Court in Shambhu Nath's case as well as in Harisharan case. Their Lordships having gone through the related provisions at length from Para 15 to 22, quoted below for better appreciation:
15. It is for 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, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, 'Scheduled Tribes' defined under Article 366(25) as substituted (sic) under the Act, and the Second Schedule thereunder are conclusive. Though evidence may be admissible to a limited 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, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe.
16. In Valsamma Paul v. Cochin University, a Bench to which two of us (K. Ramaswamy and B.L. Hansaria, JJ.) were members have surveyed the retrograde attempts successively made by different communities in the country to wear the mask of status either of Scheduled Castes or Scheduled Tribes to secure constitutional benefits or reservations and other economic empowerments, intended for the Scheduled Castes and Scheduled Tribes and meant for the latter to accord to them economic, social and cultural advancement. In the Andhra Pradesh High Court decisions noted in the judgment of the Bench, Jangama, backward class sought to be recognized as Scheduled Caste taking the name as Bedajangama or Budagajangama, a Scheduled Caste. Equally Holva tried to be Holuva, i.e. from OBC to ST. Those attempts were judicially negated. This case is yet another instance, where Other Backward Class en masse seeks to get the status of the Scheduled Tribe. It is a retrograde step to corner the benefits intended for Scheduled Tribes. In Shambhu Nath Case, this Court, therefore, did not intend to lay down any law that Lohars are Scheduled Tribes. Unfortunately due to concession by the counsel for the Union; without due verification from English version, this Court accepted Hindi version placed before the Bench and held that they were included as Scheduled Tribes. There was an obvious mistake in accepting a mistaken fact. Therefore, this Court proceeded on that mistaken assumption without verification from the Act that Lohars are included in Part-III of Second Schedule relating to the State of Bihar. Therein this Court stated thus:
In view of the accepted position that Lohar community is included in the Scheduled Tribe from the date of the amendment of the list in 1976 we do not think that the Tribunal was justified in holding the view it has taken.17. This Court, therefore, proceeded on the premise as admitted by the counsel that Lohar was included in the Act as Lohars in the Second Schedule as Scheduled Tribe. The counsel wants us to read the earlier sentence, viz., 'We have looked into the record'. In view of the factual quotation from the Act and the Second Schedule, as extracted in the earlier part of the judgment, the effect of the above sentence speaks for itself and seems to be otherwise. As a fact the Bench proceeded on the basis of the concession of the Union counsel. It proved to be an obvious mistake and as a fact the translated Hindi copy was placed before the Court and the Court proceeded on that premise. The case establishes that the Court was misled by incorrect record. It proves how wrong it would be to proceed on the basis of statement by counsel who do not take full responsibility to place correct record, in particular, on constitutional issues.
18. it is seen that in the Second Schedule in Part III of the Act, as extracted hereinbefore, Lohar was not included as a Scheduled Tribe. It is only, as evidenced from the translated version, that the community 'Lohar' came to be wrongly translated for the word 'Lohra' or 'Lohara' and shown to have been included in the Second Schedule, Part III, applicable to Bihar State. Mr. B.B. Singh, therefore, is right in placing before us the original version in English and the translated version.
19. Article 348(1)(b) of the Constitution provides that notwithstanding anything in Part II (in Chapter II Articles 346 and 347 relate 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 Parliament, shall be in the English language. By operation of Sub-article (3) thereof with a non obstante clause, 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 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.
20. Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are blacksmiths. We approve the said view laying down the correct law.
21. We may mention, before parting with the case, that a writ petition under Article 32 was filed in this Court in a representative capacity by some of the students belonging to Lohar community seeking admission into medical colleges to direct the District authorities to give them social status certificate as Scheduled Tribes. This Court dismissed the writ petition holding that no direction could be issued to authorities to act contrary to the Constitution and the laws and that the writ petition was, therefore, held not maintainable. This would give an insight into the consistent attempt by Lohar community to wear the mask of Scheduled Tribe status and to masquerade as such for getting the constitutional benefits meant for the poor tribes, which the President in consultation with the Governor or Parliament had not granted to them and such status as Scheduled Tribe cannot be granted to OBCs.
22. The appeal, therefore, is dismissed with costs throughout.
20. This view was further confirmed in : [1997]2SCR97 in Vinay Prakash and Ors. v. The State of Bihar. In this case Shambhu Nath's case have been considered and discussed, as quoted below
This special leave petition arises from the judgment and order of the Patna High Court, made on 10.10.1996 in LPA No. 831 of 1996. The President of India, in exercise of the power under Article 342(1) of the Constitution read with Article 366(25), notified the Scheduled Tribes for the State of Bihar thus:
Such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution. Thereafter, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 came to be made adding to or deleting from the lists certain castes. In Entry 22 of the entries in relation to the State of Bihar, Lohara was wrongly translated as Lohra and the same was published in the State Gazette notification. That came to be rectified by a notification published by the Government on 6.1.1995. In the meanwhile, there was a spate of litigation after the 1976 Amendment Act and the Lohars--a backward class-- as stated earlier, claimed the status of Scheduled Tribes. When the said claims for social status of Scheduled Tribes came to be rejected, the petitioners approached the courts. While the desired social status certificates were granted by the High Court in some cases, the same was refused in others. When the matter had come up for the first time, before a Bench of three Judges of this Court, to which one of us (K. Ramaswamy, J.) was a member, in Shambhu Nath v. Union of India, it was wrongly conceded by the counsel appearing for the Union of India that they were entitled to the status of Scheduled Tribes. On that premise, the order of the Administrative Tribunal was set aside and direction was given to issue the certificate of Scheduled Tribes. Since the social status certificates were not issued despite direction in that regard, a writ petition under Article 32 was again filed in this Court seeking a writ of mandamus directing all the authorities in the State to issue certificates in the light of the judgment passed by this Court in Shambhu Nath Case. That writ petition was also dismissed by a Bench of three Judges, to which one of us (K. Ramaswamy, J.) was a member.
21. In (2006) AIR SCW 5379, same question was raised before the Hon'ble Apex Court in Civil Appeal No. 5483 of 2000 with W.P.(C) No. 173 of 2002 and 499 of 2000. The petitioner Prabhat Kumar Sharma claiming himself to be 'Lohar' asserted the advantages of being scheduled tribe. Their Lordships considering this aspect as well as earlier decision in Nitya Nand Sharma's case held that the view taken by the Court in Nitya Nand Sharma's case was correct and does not require any fresh consideration. Their Lordships have further held that as follows:
Court would take judicial notice of the Acts of Parliament and would interpret the Schedule in the light of the English version being an authoritative texts of the Act and the second Schedule.
From the conjoint reading of Article 348 of he Constitution and Sections 3 and 5 of the Official Languages Act, 1963, English continues to remain the authoritative text in respect of the Acts of Parliament.
Accordingly, their Lordships rejected the contention of the petitioner being in full agreement with the view taken in Nitya Nand Sharma's case and Vinay Prakash case. As such the controversy raised by the petitioner that 'Lohar' be included in scheduled tribes list is no more res integra.
22. It has also come on record that the petitioner unsuccessfully attempted to contest the Election in erstwhile State of Bihar in the year 1995 but his nomination papers were rejected on the same grounds that he did not belong to reserved category of scheduled tribes. The matter was agitated before the Patna High Court in Election Petition No. 2 of 1995 which stand withdrawn and dismissed vide annexure-3 certified copy of the order dated 11.7.1996.
This election petition calling in question the election of the returned candidate -respondent has been challenged on the solitary ground that the petitioner who was Lohar by caste belong to schedule Tribes and was entitled to contest election to the Bihar Legislative Assembly from 110 Dumka Constituency (Reserved) and the rejection of the nomination paper by the Returning Officer by his order dated 27.1.1996 was illegal.
Learned Counsel for the election petitioner, in the presence of the Learned Counsel appearing for the sole respondent, was very fair to state that in view of the decision of the apex court reported in 1996- AIR-SCW 782 (Nityanand Sharma and Anr. v. The State of Bihar and Ors.) rendered by a three judge bench, 'Lohar' in Bihar have been held to be included among other backward class and not Scheduled Tribes'. In view of the authoritative decision of the apex court, Lohars in Bihar cannot be included among Scheduled Tribes and the petitioner's nomination for the aforementioned reserved constituency could not have been accepted.
In the circumstances, Learned Counsel for the petitioner sought leave of the court to withdraw the election petition.
The election petition is accordingly dismissed as withdrawn. In the circumstances of the case, there shall be no order as to cost.
23. The contention of the petitioner further that 'Lohar' is scheduled tribe does not find support from his own declaration as mentioned above where he has written in part-3 page-3 that he belongs to S.T. 'Lohra', asserting that 'Lohra' and 'Lohar' are synonyms. Their Lordships have already considered this aspect in Nitya Nand Sharma's case and came to definite finding that 'Lohar' belongs to other backward classes and is separate from 'Lohra'. It has been followed in Vinay Prakash Case and lastly in Prabhat Sharma's case.
24. Therefore, I have no hesitation to conclude that the petitioner as 'Lohar' caste is not included in the list of scheduled tribes for the State of Jharkhand. Issue No. 3 is accordingly decided against the petitioner.
25. In view of the findings arrived at in issue No. 3, I further find and hold that 'Lohar' and 'Lohra' are not synonyms to each other as this point stands covered squarely by the decision cited above in : [1996]2SCR1 , : [1997]2SCR97 and (2006) AIR SCW 5379. As such, I find and hold that the question whether 'Lohar' and 'Lohra' are synonyms to each other is no more res integra. Accordingly, 'Lohar' is found and held to be different form 'Lohra' being members of other back ward classes. Accordingly, issue No. 5 is decided against the petitioner.
26. I further find and held that this aspect whether petitioner may be held scheduled tribes being 'Lohar' having been decided by the Patna High Court in E.P. No. 2 of 1995, the matter cannot be re- agitated in present form. As such, I find and hold that the principle of res judicata as well as constructive res judicata is applicable in the facts of this case. Accordingly, issue No. 6 is decided against the petitioner.
27. In the facts and circumstance, I find and hold that the order of the Returning Officer dated 7.2.2005 is in accordance with law. The order rejecting the nomination papers of the petitioner is, therefore, found to be proper and correct, passed without any bias in accordance with law. Issue No. 4 is accordingly decided against the petitioner and in favour of the respondent.
28. In view of the findings arrived and mentioned above, I find that the petitioner has filed this petition without valid cause of action and not maintainable under Section 82 and 83 of the Representation of Peoples Act, 1951, Issue No. 1 and 2 are accordingly decided against the petitioner.
29. In the result, I find and hold that the present election petition is without merit and deserves to be dismissed. Accordingly, this election petition be and is hereby dismissed without any order as to costs.