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2016 DIGILAW 3723 (ALL)

SHRIKESH RAJBHAR v. STATE OF U. P.

2016-11-16

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—This petition has been filed for a direction upon the respondents to consider the candidature of the petitioner in BTC Training Course, 2015. While entertaining the writ petition, following orders were passed on 18.10.2016 : “Submission is that persons with lower merit have been selected. It is contended that petitioner had secured 181.87 marks, whereas the cut of marks was notified as 169.60 in respect of DIET, Jaunpur. Contention is that respondents have acted in an arbitrary manner in non-suiting the petitioner’s claim. Learned Standing Counsel may obtain instructions from the respondent No. 4. Put up as fresh on 24th October, 2016". 2. Learned Standing Counsel has obtained instructions. It is stated on behalf of the respondent that the petitioner belongs to other backward class being ‘Bhar’ and the last cut off for male Scheduled Tribe category is 187 and the petitioner is not entitled to be sent for training as per his respective merit. 3. Learned counsel for the petitioner states that his caste ‘Bhar’ essentially is a ‘tribe’, which was initially notified as criminal tribe and by virtue of Government Order dated 12.5.1961, the Government de-notified vagrant tribes and various relaxations were offered to these tribes. It is stated that petitioner being a member of erstwhile vagrant tribe, in terms of the notification issued in the year 1961, is entitled to be treated as Schedule Tribe as it was a scheme envisaged for the social advancement of these tribes. Reliance has also been placed upon a decision of this Court in Writ Petition No. 25142 of 2004 as well as the order passed by this Court in Writ Petition No. 38241of 2003, decided on 25.9.2003. 4. Learned Standing Counsel, on the other hand, states that the caste ‘Bhar’ is notified as OBC by the State and, therefore, it cannot be treated to a Scheduled Tribe. Learned counsel for the petitioner, in reply, has relied upon a Government Order dated 22.10.2013, in order to contend that ‘Bhar’ is a vagrant tribe and, therefore, they are entitled to be treated as Scheduled Tribe. 5. I have heard learned counsel for the parties and have perused the record. 6. Learned counsel for the petitioner, in reply, has relied upon a Government Order dated 22.10.2013, in order to contend that ‘Bhar’ is a vagrant tribe and, therefore, they are entitled to be treated as Scheduled Tribe. 5. I have heard learned counsel for the parties and have perused the record. 6. The question that arises for consideration in the matter is as to whether petitioner is liable to be treated as Scheduled Tribe or as a member of ‘other backward caste’ for the purpose of grant of reservation in securing admission to BTC training course. The essence of petitioner’s contention is that grant of training cannot be treated to be an employment and, therefore, the fact that caste ‘Bhar’ is included in OBC category, would not be relevant and the benefit extended in terms of the Government Order for treating the petitioner to be a member of Scheduled Tribe has to be given effect to. 7. The Constitution of India clearly provides the manner in which a caste is to be treated as Scheduled Tribe. Article 342 of the Constitution of India reads as follows : “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 purpose 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”. 8. From the aforesaid provisions, it is clear that the right to declare a caste as a Scheduled Tribe lies exclusively with the President in consultation with the Governor. Such declaration is to be issued by way of a notification and various orders have been issued from time to time in that regard. It is not the petitioner’s case that any presidential notification is issued declaring his caste as Scheduled Tribe. Such declaration is to be issued by way of a notification and various orders have been issued from time to time in that regard. It is not the petitioner’s case that any presidential notification is issued declaring his caste as Scheduled Tribe. The jurisdiction falls exclusively with the President in terms of Article 342 of the Constitution. 9. Unless a caste is declared as Scheduled Tribe by presidential order, it cannot be held to be a Scheduled Tribe, either by the State Government or by any other authority except as provided for in Article 342 of the Constitution of India. 10. Argument advanced by the learned counsel for the petitioner that his claim is to be considered being a member of de-notified tribe is wholly misconceived inasmuch as it is only when the caste is notified as Scheduled Tribe, that the benefit could be extended to such caste. 11. Learned counsel for the petitioner has relied upon the order passed by the learned Single Judge of this Court in Writ Petition No. 25142 of 2004 dated 14.7.2004 which reads as Under : “Heard counsel for petitioner and learned Standing counsel. The petitioner is seeking admission to Special B.T.C. Course 2004. According to him he should have been selected for training as he has got more than the cut of marks declared for scheduled tribe candidate. It is contended that he has wrongly treated in the category of other backward class. “The petitioner belongs to ‘Bhar’ tribe in the British rule, the ‘Bhar’ tribe was notified as a Criminal Tribe. By Government order dated 12.5.1961, it was found that the main reasons for the criminality of these tribes was their poverty and economic instability. The Government de-notified ‘vagrant tribes’, and offered several concessions and relaxation alongwith financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include ‘Bhar’ at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. The Government de-notified ‘vagrant tribes’, and offered several concessions and relaxation alongwith financial assistance to settle these tribes. The notification excluded these communities which were already listed as scheduled tribe from the list appended to the Government order. The de-notified tribes include ‘Bhar’ at item No. 2 in the District of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. For the purpose of education, academic and social benefits, these tribes were treated as scheduled tribe, where as for the purpose of reservation in public service the ‘Bhar’ and ‘Rajbhar’ category is treated and included at item No. 27 Schedule I, as other backward classes in U.P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994. The question raised in this writ petition is no longer res integra. In writ petition No. 879/2001, this Court allowed the writ petition directing that so far as B.Ed. Training course in pursuance of B.Ed. Entrance examination 2000 is concerned, the petitioner, who belonged to Vimukt Jati shall be treated as scheduled tribe, and for the purpose of employment he shall be treated in the category of other backward classes. These findings are quoted as below; “Heard Shri S.K. Mishra the learned counsel for the petitioners and Shri Pankaj Mittal the learned counsel appearing for the respondent. The petitioners have filed certificates as Annexure-3 and 4 to the writ petition which clearly shows that in pursuance of Government Order dated 10.7.1986 Vimukt Jati or Vagrant Tribe is entitled to be treated as Scheduled Tribe but this certificates shall not entitle the certificate holder to claim reservation in service as Scheduled Tribe. However, the certificate holder shall be entitled for other benefit extended by the State Government. Admission to B.Ed. Course is an educational training course and the petitioner is not claiming any reservation in service. Therefore, the petitioners in pursuance to certificate issued by respondent rightly applied for admission as Schedule Tribe candidate. The University committed an error in rejecting the application and admission of the petitioners in B.Ed. Training course. Petitioner No. 1 has secured 200.5 marks and petitioner No. 2 has secured 22.5 marks in the B.Ed. Entrance test. Therefore, the petitioners in pursuance to certificate issued by respondent rightly applied for admission as Schedule Tribe candidate. The University committed an error in rejecting the application and admission of the petitioners in B.Ed. Training course. Petitioner No. 1 has secured 200.5 marks and petitioner No. 2 has secured 22.5 marks in the B.Ed. Entrance test. Petitioner was granted admission as per result published in the newspaper Dainik Jagran, Agra edition on 12.9.2000, a copy of which has been placed before the Court which shows that petitioner No. 1 was admitted as Schedule Tribes candidate in Baikunthi Devi Girls College, Agra and petitioner No. 2 was admitted as Scheduled Tribes candidate in Dharam Samaj College, Aligarh but their admissions have been cancelled as the respondent was of the opinion that they belong to backward caste. The Government has conferred twin benefits on the petitioners (Vimukt Jati). For the purpose of the educational studies the petitioners are Schedule Tribe and for the purpose of reservation in service they have to be treated in Backward Class category as per Government Order filed alongwith the writ petition. Prima facie in my opinion the holder is entitled for appointment in B.Ed. Training course as Schedule Tribe candidate if he has qualified in the entrance examination and he secures more marks than the last selected candidate, therefore, the petitioners are entitled for interim order. The respondent is directed to admit the petitioners in B.Ed. Course as Scheduled Tribe candidate. The respondent is further directed to pass appropriate orders to the concerned colleges to admit the petitioners in B.Ed. Training course in pursuance of B.Ed. Entrance examination 2000 as Scheduled Tribe candidate within a period of two weeks from the date a certified copy of the order is produced before respondent” The petitioner, as such, is entitled to be treated and included in the category of scheduled tribe for the purpose of education, training and other social benefits. The special B.T.C. Course 2004 is a condensed bridge course for all those who have teaching qualifications like B.Ed/L.T, other than teaching qualifications for basic teachers’ training for the purpose of employment as assistant teachers in Basic Schools run by U.P. Basic Education Board. The special B.T.C. Course 2004 is a condensed bridge course for all those who have teaching qualifications like B.Ed/L.T, other than teaching qualifications for basic teachers’ training for the purpose of employment as assistant teachers in Basic Schools run by U.P. Basic Education Board. The petitioner, therefore, is entitled to be treated as belonging to Scheduled Tribe, for the purpose of training and thereafter if he succeeds in the examination, he is entitled to be considered in the category of Other Backward Classes for the purpose of employment as Assistant Teacher. The writ petition is disposed of with direction that for the purpose of Special B.T.C. Course 2004, the petitioner shall be treated as belonging to Scheduled Tribe, subject to verification of his caste certificate, and that his candidature shall be reconsidered alongwith the scheduled tribe categories. In case he successfully completes the training and pass the examination, he shall be placed in the category of other backward classes for appointment”. 12. Reliance has also been placed upon a similar order passed by this Court. 13. A perusal of the order aforesaid clearly goes to show that reliance has been placed upon the Government Orders issued by the State Government in the context of erstwhile criminal tribes which were de-notified later as vagrant tribes. It has been held that so far as the grant of training to the member of Vimukt Jati is concerned, he/she is entitled to be treated as Scheduled Tribe. The judgment of this Court, however, fails to take into consideration the specific provision contained under Article 342 of the Constitution of India, which exclusively confers jurisdiction to classify a caste as Scheduled Tribe. Unless declaration in terms of Article 342 of the Constitution of India is made in the manner contemplated, benefit of Scheduled Tribe cannot be extended. It is not in dispute that the petitioner’s caste is not notified as a Scheduled Tribe in terms of Article 342 of the Constitution of India. Even the State Government has got no jurisdiciton to issue a Government Order conferring benefit of Scheduled Tribe in the matter of grant of training etc. upon a caste which is not declared as a Scheduled Tribe in accordance with Article 342 of the Constitution of India. Even the State Government has got no jurisdiciton to issue a Government Order conferring benefit of Scheduled Tribe in the matter of grant of training etc. upon a caste which is not declared as a Scheduled Tribe in accordance with Article 342 of the Constitution of India. I would have referred the matter to a Larger Bench, as I propose to take a different view, but such a course is not followed, keeping in view the settled principle of per incuriam. 14. Attention does not appear to have been invited in the judgment relied upon to the provisions contained under Article 342 of the Constitution of India. In hierarchy of laws, a specific mandate contained in the Constitution of India would stand on a higher pedestal over an executive fiat of the State. Even otherwise, an anomalous situation would be created if same candidate is treated as Scheduled Tribe candidate for the purposes of grant of benefit of training and simultaneously be treated as member of other backward caste for grant of appointment. Since specific provision of the Constitution of India have not been noticed, as such, with utmost respect, I propose not to follow it. No other point is pressed. 15. Writ petition accordingly fails, and is dismissed.