Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
Petitioner, before this Court, claims that she is Meena by caste and that her ancestors were permanent residents of District Dausa, Rajashthan, where caste of Meena is notified under the List issued under Section 342 of the Constitution of India for the State of Rajashthan as scheduled tribe.
Petitioner has stateds that she is resident of Muhalla Kidki Darwaza, Fariha, Tehsil Jasrana, District Firozabad and she is Meena by caste, which is a Scheduled Tribe in the State of Rajasthan.
In paragraph-14 of the writ petition, it is stated that one Beena Singh, S/0 Manoj Kumar Meena, R/o Sheer Muhal, Tehsil Hathras, District Hathras, who belongs to the Meena caste, has been granted caste certificate of Scheduled Tribe, which has been enclosed as Annexure-8 to the writ petition.
On these allegations, with reference to the Government Orders dated 31st December, 2012 and dated 26th October, 1994, she has come up with a prayer that respondent district authorities may be asked to issue a caste certificate showing the petitioner as member of Scheduled Tribe.
This Court made a pointed query from the learned counsel for the petitioner as to whether the caste Meena is included in the list of Scheduled Tribes notified for the State of Uttar Pradesh with reference to Article 342 of the Constitution of India or not.
Learned counsel for the petitioner has fairly admitted that the list of Scheduled Tribe notified for the State of Utter Pradesh under Article 342 of the Constitution of Indian does not include the Meena as one of the member of the Scheduled Tribes.
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, writ petition is liable to be dismissed.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
It would be worthwhile to reproduce Articles 341 and 342 of the Constitution of India, which 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 70, 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."
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 by the Parliament.
In S. Gurmukh Singh Vs. Union of India & 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."
In Parsram & Anr. Vs. Shivchand & 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 held that it was not open to the Court to scrutinise whether a person falls 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 Vs. D. Munichinnappa, AIR 1965 SC 1269; and Bhaiya Lal Vs. Harikrishen Singh, AIR 1965 SC 1557.
In Pankaj Kumar Saha Vs. Sub Divisional Officer, Islampur & 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 & Anr. Vs. State of Bihar & 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."
In Mrs. Valsamma Paul Vs. Kochin University & 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.
In E.V. Chenniah Vs. 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 the 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 sub-divide, sub-classify or sub-group these castes which are found in the Presidential List or Scheduled Castes.
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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.
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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 the 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.
The Apex Court has repeatedly held that the list of Scheduled Casts and Scheduled Tribes is notified State-wise and the list is to be published by the President and thereafter any amendment therein can only be made by an Act of Parliament. A person who is member of Scheduled Tribes in other State may not be treated as member of Scheduled Casts and Scheduled Tribes, in the State where such caste is not notified in the concerned list prepared under Article 341 and Article 342 of the Constitution of India. The issue in that regard has been settled by the Apex Court in the case of E.V. Chinnaiah (Supra) and in the case of State of Maharashtra vs. Milind & Others reported in AIR 2001 SC 393.
The Apex Court in the case of Marri Chandra Shekhar RAO vs. Dean, Seth G.S. Medical College & Others reported in 1990 (3) SCC 130 and in the case of State of Maharashtra & Another vs. Union of India & Another reported in 1994 (5) SCC 244, has laid down that the benefit available in original State, where the particular caste was notified as Scheduled Tribe, cannot be availed of in other State of India after migration.
In view of the law so explained, all the Government Orders relied upon the learned counsel for the petitioner have necessarily to be held as illegal and of no consequence.
So long as the Meena is not notified as Scheduled Tribes in the State of Utter Pradesh, as per Article 342 of the Constitution of India. There cannot be any mandamus to the district authorities to issue any caste certificate in favour of the petitioner treating her to be a member of Scheduled Tribe.
In view of the above, we do not find any merit in the present writ petition.
Present writ petition is, accordingly, dismissed.