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2009 DIGILAW 2778 (ALL)

UMA SAHNI v. STATE OF U. P.

2009-08-06

ARUN TANDON

body2009
JUDGMENT Hon’ble Arun Tandon, J.—Petitioner before this Court claims to be ‘Mallah’ by caste. In paragraph-3 of the writ petition, it is stated that ‘Mallah’ has been included in the list of ‘Vimukti Jaati’ vide Government Order issued by the State of Uttar Pradesh dated 21.11.1992, enclosed as Annexure-3 to the writ petition. In view of the circular, it is claimed that petitioner’s caste is now included in the list of ‘Vimukti Jaati’ and therefore, she is to be treated as Scheduled Tribes. Reference has been made to the caste certificate issued in her favour by the Tehsildar. Reliance has been placed upon judgments passed by this Court in the case of Bhaiya Lal and another v. Special Secretary, Department of Education and others, Civil Misc. Writ Petition No. 25142 of 2004, decided on 20.3.2009 as well as in the case of Munna Prasad v. State of U.P., (Writ Petition No. 23408 of 2004) decided on 25.6.2004 (delivered by me). 2. I have heard learned counsel for the parties and have gone through the records of the writ petition. 3. Before entering into the issue raised, the Court may reiterate the law laid down by the Apex Court and this Court with reference to the constitutional provisions, which regulate the grant of Scheduled Caste and Scheduled Tribes status to a particular caste i.e. Articles 341 and 342, which are identical in nature except that first provides for Scheduled Caste and other for Scheduled Tribes, and read as follows : “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 State [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. 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.] (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 4. From the simple reading of the aforesaid statutory provision it is crystal clear that the first list of Scheduled Caste/Scheduled Tribe, to be treated as such, in relation to a State or the Union Territory is to be notified by the President of India. Any amendment in such list notified either by inclusion or exclusion can be affected only through an Act of Parliament. The scope of Articles 341 and 342 of the Constitution of India has been considered by the Hon’ble Supreme Court of India in its judgment reported in 2004(9) SCC 481 , Sudhakar Vithal Kumbhare v. State of Maharashtra and others and 2003(7) SCC 657 , U.P. Public Service Commission, Allahabad v. Sanjay Kumar Singh. It has been explained that first list has to be published by the President of India and thereafter any amendment in such list can be made by the Act of Parliament only. The Supreme Court has held that the State Government cannot add or substitute any caste to the list notified nor any caste can be declared as sub caste of a notified caste for the purposes of being treated as the Scheduled Caste or Scheduled Tribe. The Apex Court has gone to the extent of holding that even the High Court of the State cannot do so. 5. The Apex Court has gone to the extent of holding that even the High Court of the State cannot do so. 5. In view of the aforesaid settled legal position, mere issuance of the notification dated 21st November, 1992, by the State Government declaring ‘Mallah’ to be included in ‘Vimukti Jaati’ of district Gorakhpur will not in any way lead to the conclusion that the Caste Mallah is to be treated as Scheduled Tribe within the provisions of Article 342 of the Constitution of India. In view of the aforesaid, this Court has no hesitation to record that the caste ‘Mallah’ is not within the notified list of Scheduled Tribes. After arriving at the said conclusion this Court holds that the petitioner does not belong to Scheduled Tribes nor any benefit can be offered by way of reservation in her favour as such. Any order of the State Government to the contrary would virtually negate the provisions of Articles 341 and 342 of the Constitution of India. 6. So far as the judgments relied upon by the learned counsel for the petitioner are concerned, this Court may at the outset record that the law laid down by the Hon’ble Supreme Court in the aforesaid judgment vis-a-vis Article 342 of the Constitution of India has not been examined. So far as the first judgment is concerned, the Court has specifically recorded that ‘Bhar’ was within Scheduled Tribes, as per the judgment of Hon’ble Supreme Court in the case of State of Maharashtra v. Milind and others, JT 2000 (Suppl. 3) SC 213. Moreover, the position qua the caste ‘Bhar’ has been subsequently explained by this Court vide its judgment and order dated 23.12.2004 passed in Civil Misc. Writ Petition No. 42348 of 2004, Vijay Prakash v. State of U.P. and others, alongwith connected petitions, which has been affirmed by the Division Bench of this Court vide judgment and order dated 4.2.2005 passed in Special Appeal No. 89 of 2005, Vijay Prakash v. State of U.P. and others. So far as the second judgment is concerned, this Court has no hesitation to state that the said judgment was delivered without examining the Articles 341 and 342 of the Constitution and the law applicable. So far as the second judgment is concerned, this Court has no hesitation to state that the said judgment was delivered without examining the Articles 341 and 342 of the Constitution and the law applicable. The Hon’ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mills (Pvt.) Ltd. and others, reported in 2003 (2) SCC 111 , has held as follows : “It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.” 7. The said judgment has been followed in the recent judgment of the Hon’ble Supreme Court in the case of Dr. Rajbir Singh Dalal v. Chaudhari Devi Lal University, Sirsa and another, reported in AIR 2008 SCW 5817 . 8. The writ petition is dismissed. 9. At this stage, counsel for the petitioner contended that ‘Mallah’ has been declared as O.B.C. in U.P. and therefore, her application be considered under the said category. In the case, the petitioner belongs to the O.B.C. category, she may make a fresh representation within two weeks from today before respondent No. 2, which shall be considered and decided within four weeks thereafter. ————