JUDGMENT
B.S. Chauhan, J.
1. The special appeal has been filed against the judgment and order dated 23.12.2004 of the learned Single Judge dismissing the writ petition of the petitioner for issuing direction to treat the petitioner as belonging to members of Scheduled Caste being a member of ‘Bhar/Rajbhar’ community.
2. The facts and circumstances giving rise to this case are that the petitioner/appellant belongs to Bhar/Rajbhar caste, which falls in the category of Denotified Tribe (Vimukti Jati). Persons belonging to Bhar and Rajbhar communities of the district Azamgarh, in the State of Uttar Pradesh, had earlier been notified under the provisions of Criminal Tribes Act 1924 (hereinafter called the Act 1924). The Act 1924 stood repealed in 1952 and all the communities included in the schedule thereof stood de-notified, and certain benefits have been given to them, for example, making certain reservations of the seats in educational institutions. The petition was filed for issuing direction to the respondents to treat the petitioner/appellant belonging to Scheduled Tribes and confer upon him the benefit of reservation available to Scheduled Tribes candidates for the purpose of admission in the B.T.C. Course qua the Entrance Examination 2004. However, the petition has been dismissed. Hence this appeal.
3. Sri L.D. Rajbhar, learned counsel for the appellant has submitted that the community of Bhar/Rajbhar in the district Azamgarh has been suppressed to an extent that it became even weaker than the persons belonging to Scheduled Tribes. State of Uttar Pradesh have issued certain orders from time to time giving Rajbhars benefits available to scheduled tribe candidates. Hence the appeal deserves to be allowed.
4. On the contrary, learned Standing Counsel, appearing on behalf of the respondents has submitted that the privilege and rights available to Scheduled Tribes candidates can be conferred upon a particular class or caste only by the Parliament in view of the provisions of Articles 341 and 342 of the Constitution. The State Legislature is not competent to enact the law on this issue nor the Government Order could be issued to that effect. Thus, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
6. The caste system has been prevailing in the country from the time immemorial. It has its advantage and disadvantage, to certain extent, but it has been a slur on the social system as a whole. Castes or classes which had been depressed and educationally backward, had been identified to be backward classes. In fact a large number of communities, for political and economical reasons, could not be in the main stream of the society. After the failure of 1857 Mutiny, the British regime confiscated the properties of persons who had fought against them; they had been deprived of the rights of education and employment; a large number of male adult of those communities had been hanged to death; thus, the female folk of those classes ran away with minors, and as those children did not have an opportunity to earn their livelihood, they adopted the crime as their profession. To curb the menace, the Criminal Tribes Act, 1911 (hereinafter called the Act 1911) was enacted, having serious rigour on the persons belonging to the said communities. These communities were notified under the provisions of that Act 1911. The Act was repealed by the Criminal Tribes Act 1924 having more rigorous provisions. It included deprivation of education and employment in the State/Kingdom. Persons belonging to these communities were bound to report to the Police Station after a regular interval. When a child of that community attained the age of 4 years, his name was required to be registered with the Police Station. Persons were bound to give their finger impressions to the Police Station. They could not move freely or even visit their relatives as they had to furnish all such informations to the Police. The authorities under the Act, were competent to pass an order for their settlement in a particular area or their place of residence could be confined to a particular area. They could be forced to settle in another State. For non-compliance of the provisions, punishment for imprisonment upto 3 years was provided in the Act. Sections 23 and 24 of the Act 1924 specifically provided for enhanced punishment for certain offences by members of the Criminal Tribes after previous conviction and Civil Court-jurisdiction had been barred to entertain any suit in respect of the notifications issued under the Act 1924.
7. India achieved independence in 1947 and it became republic on commencement of the Constitution of India on 26th February, 1950, but the Act 1924 was repealed w.e.f. 31st August, 1952. At the time of repealing the said Act, certain recommendations were made to provide the facilities to the persons of these communities more than reservations in service etc. Thus, there has been a continuous demand to confer privilege to the persons belonging to these tribes who had been de-notified and put them at the bar of the Scheduled Tribes.
8. There had been an obligation on the part of State, as required under the provisions of Article 46 of the Constitution, to promote with social care the educational and economic interest of the weaker-sections of the society, and to protect them from social injustice and all forms of exploitation. Articles 15(4) and 16(4) of the Constitution enables the State to enact law to protect the interest of the weaker-sections of the society. In certain cases, Courts are also empowered to issue directions to the State to discharge its obligations under the Constitution.
9. Article 366 of the Constitution-definitions ‘scheduled castes’ and ‘scheduled tribes’ as under :
“(24) ‘Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution;
(25) “Scheduled Tribes” means 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.”
10. Articles 341 and 342 of the Constitution read as under :
“341. Scheduled Castes.–(1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
342. Scheduled Tribes.– (1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.”
11. In exercise of the powers conferred under the aforesaid Articles 341 and 342, the Constitution (Scheduled Castes) Order 1950 and Constitution (Scheduled Tribes) Order 1950 have been issued. Subsequent thereto, large number of amendments have been brought therein, and for reference, the same are being quoted below :
“The Constitution (Scheduled Castes) (Union Territories) Order, 1951, the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956, the Constitution (Dadra and Nagar Haveli) Scheduled Castes Order, 1962, the Constitution (Pondicherry) Scheduled Castes Order, 1964 and the Constitution (Goa, Daman and Diu) Scheduled Castes Order, 1968 and the Constitution (Sikkim) Scheduled Castes Order, 1978.
See the Constitution (Scheduled Tribes) Order, 1950, the Constitution (Scheduled Tribes) (Union Territories) Order, 1951, the Constitution (Andaman and Nicobar Islands) Scheduled Tribes Order, 1959, the Constitution (Dadra and Nagar Haveli) Scheduled Tribes Order, 1962, the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967, the Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968, the Constitution (Nagaland) Scheduled Tribes Order, 1970 and the Constitution (Sikkim) Scheduled Tribes Order, 1978.”
12. The scheme of the Constitution makes it clear that the persons only who had been included under the aforesaid Orders, Constitution (Scheduled Castes) Order 1950 and Constitution (Scheduled Tribes) Order 1950, are entitled to the benefit and privileges available for Scheduled Caste and Scheduled Tribes, and it is the parliament of India alone which is competent to amend the said Orders, following the procedure prescribed in Articles 341 and 342 of the Constitution. Once the President of India issued the Scheduled Castes/Scheduled Tribes Order in relation to a State in exercise of the powers under Article 341(1) and 342(1) of the Constitution, even the President cannot include or exclude any caste in that order. It is the Parliament alone which can amend the said order by law. The Courts are also devoid of any power to include or exclude, to vary or substitute or declare any person to be a Scheduled Caste or Scheduled Tribes. The purpose of enacting the provisions of Articles 341 and 342 seems to be uplifting certain classes of the society who have been depressed, oppressed and suffered from backwardness in all walk of life.
13. In S. Gurmukh Singh v. Union of India and Ors., AIR 1952 Pun 143, a Full Bench examined the validity of Clause (4) added to Article 15 by amendment of the Constitution being violative of other constitutional provisions therein. The scope of the provisions of Article 341 were also considered, and in that respect, it was observed as under :
“One other point deserves notice. Part XVI of the Constitution deals with special provisions relating to certain classes. A reading of the various Articles of this Part shows that the Constitution makes provision for giving special assistance to certain classes of citizens who for special reasons have remained backward classes and would therefore require “uplifting”, and since these provisions are only intended for assisting backward people, the President has been given the power to choose a caste or even a group within a caste for special treatment…………………. Since the President has been given the power to make this selection after consulting the Governor or Rajpramukh of the State concerned this Court cannot go into the question whether Bawaria Sikhs are or are not, in fact, backward. This is a matter which lies entirely within the province of the President and he has exercised a power given to him by the Constitution.”
14. In Parusram and Anr. v. Shivchand and Ors., AIR 1969 SC 597, the Apex Court considered the scope of the provisions of Article 341 while deciding an issue in election petition, wherein the Court, hold that it was not open to the Court to scrutinise whether a person fails within a particular caste and Courts are not permitted to go beyond the notifications issued under the said provisions. Such issues are not permissible to be entertained in view of the Constitution (Scheduled Castes) Order, 1950. Holding an inquiry in this regard is not permissible in view of the provisions contained in Article 341 of the Constitution. While deciding the said case, reliance had been placed upon its earlier judgments in Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269; and Bhaiya Lal v. Harikrishen Singh, AIR 1965 SC 1557.
15. In Pankaj Kumar Saha v. Sub Divisional Officer, Islampnr and Ors., AIR 1996 SC 1728, the Hon’ble Supreme Court examined a case wherein the caste certificate was cancelled and petitioner therein was directed to produce the Presidential Notification published under Article 341(1) of the Constitution. The Court held that the castes included in such an order are not subjected to scope of judicial review and the Court is not competent to go into the question of synonymous of the caste. While deciding said case reliance was placed upon the earlier judgments in Nityanand Sharma and Anr. v. State of Bihar and Ors., AIR 1996 SC 2306. In the said case the Court has observed as under :
“It is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule, at 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 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 concerned Schedule, 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 Mrs. Valsamma Paul v. Kochin University and Ors., AIR 1996 SC 1011, the Hon’ble Supreme Court examined the issue of entitlement for admission in educational institution to the candidates belonging to scheduled castes and scheduled tribes and held that only those persons who are born in the said castes or whose caste has subsequently been included by amendment in accordance with law are entitled for the benefit. The Apex Court held that a person belonging to general category but adopted by scheduled castes person is not entitled for the benefit under the reservation meant for scheduled castes and scheduled tribes persons. Even the spouse of inter-caste marriage is not entitled to get such a benefit.
17. In E.V. Chenniah v. State of Andhra Pradesh, 2004 AIR SCW 6419, the Court examined the similar issue and held as under :
“Article 341 which is found in Part XVI of Constitution refers to special provisions relating to certain classes which includes the Scheduled Castes. This Article provides that the President may with respect to any State or Union Territory after consultation with the Governor thereof by Public Notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory. This indicates that there can be only one List of Scheduled Caste in regard to a State and that List should include all specified castes, races or tribes or part or groups notified in that Presidential List. Any inclusion or exclusion from the said list can only be done by the Parliament under Article 341(2) of the Constitution of India. In the entire Constitution wherever reference has been made to “Scheduled Castes” it refers only to the list prepared by the President under Article 341 and there is no reference to any sub-classification or division in the said list except, may be, for the limited purpose of Article 330, which refers to reservation of seats for Scheduled Castes in the House of People, which is not applicable to the facts of this case. It is also clear from the above Article 341 that except for a limited power of making an exclusion or inclusion in the list by an Act of Parliament there is no provision either to subdivide, sub-classify or sub-group these castes which are found in the Presidential List of Scheduled Castes.
This part of the Constituent Assembly Debate coupled with the fact that Article 341 makes it clear that the State Legislature or its executive has no power of “disturbing” (term used by Dr. Ambedkar) the Presidential List of Scheduled Castes for the State.
Therefore any executive action or legislative enactment which interferes, disturbs, re-arranges, re-groups or re-classifies the various castes found in the Presidential List will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.”
In view of above, law can be summarised that it is not permissible for any Court of law to travel beyond the list Issued by the President under Article 341 or 342 in this regard subject to amendment by the Parliament if any.
18. In Dr. P.S. Verma and Anr. v. Union of India, Writ Petition No. 747 of 1986, decided on 8.2.1988, a similar issue was raised before the Hon’ble Apex Court. The Court did not entertain the petition and disposed of the same after observing as under :
“The relief sought in this petition is that Gujar community be treated as scheduled tribes which is within the jurisdiction of the President to consider this aspect of the matter. Nothing more can be done except hoping that the President will consider the case.”
19. Similarly, the Rajbhar community to which the present appellant belongs also approached the Hon’ble Supreme Court filing a Writ Petition No. 126 of 1986, Akhil Bhartiya Rajbhar Maha Sabha and Ors. v. Union of India and Ors. The said writ petition was disposed of vide order dated 8.10.1987 observing that the question “whether the Rajbhar caste should be included in the list of scheduled castes/scheduled tribes under Article 341 of the Constitution of India” has to be determined by the competent authority, as for the said purpose proceedings were pending, the same may be concluded expeditiously.
20. Thus, it is apparent that the Courts are not the competent forum to decide the controversy involved in this writ petition. The Circulars/Government Orders issued by the State of Uttar Pradesh from time to time have microscopically been examined by the learned Single Judge and a finding has been recorded that the State itself is not competent to bring such a Circular/Government Order and the learned Judge has also examined the provisions of Reservation for Scheduled Castes/Scheduled Tribes and other Backward Classes (Amendment) Act, 2002, wherein the castes Bhar and Rajbhar have been included in the Backward Classes. There is nothing on record to show that the petitioner/appellant being a candidate belonging to de-notified tribe automatically becomes entitled to the benefit meant for Scheduled Tribes.
21. Moreso, there could be n justification for any authority to declare a particular candidate belonging to Scheduled Tribes for the purpose of admission in educational institution and O.B.C. for service purpose. Such a circular order being outside the scope of the competence of the State is liable to be ignored or quashed suo motu by the Court as observed by the Hon’ble Supreme Court in Ram Ganesh. Tripathi and Ors. v. State of U.P and Ors., AIR 1997 SC 1446. Moreso the copy of the impugned order dated 23.12.2004, is not a part of the record, nor we are in a position to look into it as to whether it is conferring the benefits to the candidates belonging to Rajbhar community or to the communities which stood de-notified. Moreso, the quota reserved for Scheduled Tribes cannot be reduced giving benefit to the candidates not belonging to that category.
22. In view of the provisions of Articles 14 and 16 of the Constitution State may provide certain reservations to that community, but not to the detriment of the Scheduled Tribes. Therefore, it is beyond imagination how a person not belonging to the category of Scheduled Castes or Scheduled Tribes may be admitted in any institute against the vacancies reserved for Scheduled Castes or Scheduled Tribes candidates.
23. In view of the above, we do not find any merit in the appeal. The impugned judgment and order of the learned Single Judge does not require any interference whatsoever.
Appeal is, accordingly, dismissed.
We have been informed that a large number of identical special appeals and writ petitions are pending. We direct the Registry of this Court to make a group of similar matters and place it before the appropriate Benches for final disposal.