Hon. Kashi Nath Pandey, J.
We have heard Dr. Y.K. Srivastava appearing for the respondent-appellants. Shri S.D. Kautilya assisted by Shri Rajjan Singh appears for the petitioner-respondent.
This intra court special appeal arises out of judgment dated 12.4.2004 of learned Single Judge in a writ petition in which the petitioner claiming to belong to 'Bhar' community sought appointment to Special BTC Course, 2001, as a Scheduled Tribe candidate. Learned Single Judge relying upon the orders passed by this Court in Writ Petition No.879 of 2001, and order dated 16.12.2003 in Writ Petition No.52462 of 2003, found that the dispute is identical in nature. He found that in the orders referred by him, it was observed that though 'Bhar' community treated as 'Vimukti Jati', by the notification issued by the State Government from time to time has not been notified as Scheduled Tribe under Art.342 of the Constitution of India, the members of 'Bhar' community are entitled to special benefits under the Government Orders for the purposes of their upliftment including the training for teaching. The Special BTC course is a condensed course for training for ultimate appointment as Asstt. Teachers in the basic schools. To meet the shortage of trained teachers, the State Government with the permission of National Council of Teachers Education, had designed the special condensed training course for those, who have B.Ed. qualification for teachers training for appointment.
Learned Judge has held that since the training may not ultimately result into appointment for which selections are required to be made, the eligible candidates belonging to 'Bhar' community, a 'Denotified Tribe' vide Government Orders dated 12th May, 1961, 26th March, 1962, 31st March, 1986 and 10th July, 1986 were entitled to admission to the Special BTC course for the purposes of training. They should be taken for training as Scheduled Tribe candidates but will not be given benefit of employment as Scheduled Tribe candidates.
Dr. Y.K. Srivastava submits that the opinion expressed in the judgment of learned Single Judge is not sustainable in law. The Special BTC Course, 2001 is designed for the purposes of employment. In Ground-4 in the grounds of appeal the judgment has been challenged:-
"4. Because learned Single Judge has failed to take into account Government Order dated 10.7.1986, which has declared the petitioner/ respondent as VIMUKTI JATI only for the purposes of grant in aid by the State Government and not for the purpose of service. B.T.C. training is a part of the service of Assistant Teacher in Basic Schools and only those candidates who obtained B.T.C. training course are entitled for appointment as Assistant Teacher in basic Schools. It is further relevant to make mention here that all those candidates who have obtained the training of B.T.C. Course they are entitled for appointment and they are bound to be appointed in the primary schools. Since B.T.C. training is a par to service, therefore, the petitioner/ respondents are not entitled for admission in B.T.C. training, however, the learned Single Judge without considering this aspect of the matter passed the impugned judgment and order and as such the same is bad in law contrary to the object of Government Order dated 10.7.1986 and the same is liable to be set aside."
Dr. Y.K. Srivastava submits that this Court had an occasion to consider the same question subsequently in Vijay Prakash Vs. State of U.P. & Ors., Special Appeal NO.89 of 2005 decided on 4.2.2005, and in State of U.P. & Ors. Vs. Shiv Kumar Bhardwaj & Ors., 2010 (2) ADJ 854 (DB). In both these judgments the question of inclusion and the benefit to be given to the members of 'Bhar' community as denotified tribe to be included in Scheduled Tribe was under consideration. In Vijay Prakash (Supra) the Division Bench of this Court after noticing the background in which the notifications were issued in respect of many tribes in the State of U.P. as denotified tribes, held that so far as 'Bhar' and 'Rajbhar' communities are concerned, the members of the community approached the Supreme Court in Writ Petition No.126 of 1986, Akhil Bhartiya Rajbhar Maha Sabha & Ors. Vs. Union of India & Ors. The writ petition was disposed of on 8.10.1987 observing that the question whether 'Rajbhar' should be included in the list of Scheduled Castes/ Scheduled Tribes under Art.341 of the Constitution of India has to be determined by the competent authority and since for the purpose the proceedings are pending, the same may be concluded expeditiously. The Division Bench held as follows:-
"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 & Ors. Vs. Union of India & 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.
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.
More so, there could be no 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 & Ors. Vs State of U.P. & Ors., AIR 1997 SC 1446. More so 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. More so, the quota reserved for Scheduled Tribes cannot be reduced giving benefit to the candidates not belonging to that category.
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.
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."
In State of U.P. Vs. Shiv Kumar Bhardwaj & Ors. (Supra) the Division Bench of this Court presided by Hon'ble Mr. Justice C.K. Prasad, the Chief Justice (as he then was) considered the same questions as it has arisen in the present case relating to adjustment of candidates belong to Bhar community in Special BTC course , 2001 as Scheduled Tribe candidates. The Division Bench came to the same conclusion as in the case of Vijay Prakash. It held that for the welfare of the backward class and for grant of concession to most backward amongst backward class, the State Government has issued Government Order dated 12th May, 1961 to issue list of denotified and vagrant tribes. In the Government Order it is stated that though there are no Scheduled Tribe recognised as such in the State yet there are certain tribes, which deserves special attention in the same way as is available to Scheduled Tribes for other States. The notification included a few tribes and provided that list of denotified and vagrant tribes will be issued separately. In the list of denotfied tribes community 'Bhar' is amongst denotified tribes within the district of Azamgarh, Varanasi, Faizabad, Jaunpur and Gorakhpur. The Court held relying upon State of Maharashtra & Ors. Vs. Mana Adim Jamat Mandal, (2006) 4 SCC 98 and Vijay Prakash Vs. State of U.P. & Ors. (Supra) reported in 2005 All LJ 1697 and Tara Prasad Misra Vs. State of U.P. & Ors., (1990) 2 UPLBEC 905 that the State Government does not possess any power to declare any particular tribe as Scheduled Tribe and that being beyond the competence of the State Government no writ can be issued for its enforcement.
In Vijay Prakash (Supra) Hon'ble Mr. Justice B.S. Chauhan (as he then was) decided another relevant issue, for the purposes of deciding this appeal. He found that once it is held that the State Government is not competent and consequently the Court cannot issue any writ of mandamus for giving benefit of belonging to Scheduled Castes or Scheduled Tribes to any person belonging to denotified tribe (Vimukti Jati), the Court cannot issue any writ of mandamus, which will reduce the number of seats in the quota reserved for Scheduled Tribe. A direction issued by the Court to treat members of any denotified tribes (Vimukti Jati) to be treated as members of Scheduled Castes or Scheduled Tribes will consequently reduce the quota of such Scheduled Castes and Scheduled Tribes violating the rights of the persons belonging to Scheduled Castes and Scheduled Tribes under Art.14 and 16 of the Constitution of India.
Shri S.D. Kautilya submits that since the petitioner has been treated by the State Government and the Court as member of Scheduled Tribe and directions have been given to consider him for admission to Special BTC Course 2001, belonging to Scheduled Tribe, and further since the matter is still pending with the Government of India for including Bhar/ Rajbhar in the list of Scheduled Tribe, the Court should allow the same position to continue, until the Government of India considers and decides the matter for which orders were issued by the Supreme Court in 1987 in Akhil Bhartiya Rajbhar Maha Sabha's case (Supra). He relies upon Sarish Chandra Chaudhary Vs. State of Tripura & Ors., AIR 1987 SC 1601 in support of his submissions.
We do not find that the same argument is available to the petitioner, in as much as in the present case the State Government has not treated the person belonging to Bhar/ Rajbhar at any time, to be included in either Scheduled Castes or Scheduled Tribes. In the supplementary affidavit filed in response to our order as to whether any candidate belonging to Bhar/Rajbhar community has been given admission as belonging to Scheduled Castes or Scheduled Tribes, it is specifically stated that no person belonging to Bhar/ Rajbhar community has been given admission in Special BTC Course as Scheduled Castes or Scheduled Tribes candidates. They have been treated and admitted as backward class candidates.
For the aforesaid reasons, we are of the opinion that the reasons given in judgment of learned Single Judge dated 12.4.2004 in Writ Petition No.15131 of 2001, Dinesh Kumar Vs. The Registrar, Vibhagiya Parikshayan, Allenganj, Allahabad & Ors. cannot be sustained. The judgment is accordingly set aside.
We may also observe that one of us (Hon. Sunil Ambwani, J.) had taken a similar view, as taken by learned Single Judge in the impugned judgment in Writ Petition No.25142 of 2004 against which review/ recall application No.20011 of 2005 was dismissed on 20.3.2009. The judgment was delivered in the absence of any assistance rendered by the State. It is observed in the order rejecting the review petition that learned Standing Counsel had not appeared in the matter inspite of several opportunities and did not even care to file written arguments. In view of the later judgments in Vijay Prakash (Supra) and in Shiv Kumar Bhardwaj (Supra), we have no hesitation in holding that the judgments dated 14.7.2004 in Bhaiya Lal & Anr. Vs. Special Secretary, Department of Education & Ors., Writ Petition No.25142 of 2004 as well as the order on review petition dated 20.3.2009 the opinion expressed is not legally correct. The opinion was rendered in ignorance of the law declared in the aforesaid Division Benches.
The special appeal is accordingly allowed. The judgment of learned Single Judge dated 12.4.2004 is set aside.
Dt.27.10.2010 SP/