Heard Sri L.D. Rajbhar and Sri Tara Chand Kaushal, learned counsel for the petitioners and perused the records.
These two petitioners before this Court are aggrieved by the action of the Respondents not allowing the petitioners to attend the counselling which was scheduled to be held with effect from 14th July, 2012 in relation to engineering courses to which admission is granted under a joint entrance examination conducted by the respondent-State Government.
The petitioners contend that they have qualified in the entrance examination but they further claimed the benefit of reservation claiming themselves to be belonging to the "Bhar" caste which according to them is a denotified tribe and is of the same status and equivalent to a Scheduled Tribe.
The brochure under which the said entrance examination has been conducted notifies that reservation for denotified tribes in the entrance examination is not permissible and denotified tribes are not recognized as scheduled tribes.
The petitioners contend that this provision in the brochure is unconstitutional and is even otherwise unsupportable by law, as such, the petitioners deserve the benefit of reservation treating them to be Scheduled Tribes as indicated in their caste certificate and other documents on record. A supplementary affidavit has been filed bringing on record an administrative memorandum of the Central Government dated 15th April, 1951 on the basis whereof learned counsel contends that the intention of the government is clearly to extend such a privilege to the petitioners as they are not inconsistent with any other provision of law. Learned counsel has also relied on the list of denotified Tribes which has been appended along with the supplementary affidavit together with a questionnaire giving answers under the Right to Information Act dated 12th February, 2008 from the Indian Institute of Technology, Roorki to substantiate the submissions. Under the said information given by the IIT, Roorki, learned counsel submits that the said institution has been extending the benefit for admission to such tribes and it is continuing since 1962.
Sri Rajbhar further submits that this benefit has been extended in other states as well and not only this, this Court had also observed that in view of the directions already issued to the Central Government/Competent Authority, the matter deserves to be considered by the respondents in the light of the observations made in various decisions including the Division Bench Judgment in the case of Subhash Chandra and another Vs. Delhi Subordinate Services Selection Board and others 2010 Volume (1) Page 128. It is, therefore, urged that in view of the aforesaid background, the claim of the petitioners deserves to be allowed and they should be extended the privilege of being treated as Scheduled Tribes for the purpose of admission through the joint entrance examination.
The matter had been adjourned to enable the learned Standing Counsel, Sri Sandeep Mukerjee to assist the Court on the issues so raised along with the decisions of this Court as well as the provisions in this regard.
Sri Mukerjee has advanced his submissions by citing the first decision given by this Court in the case of Vijay Prakash Vs. State of U.P. and another 2005 Volume (1) AWC Page 811 to contend that inclusion of a Schedule Tribe is dependent upon a Presidential Notification to be issued in terms of Articles 341 and 342 of the Constitution of India. The petitioners' caste/tribe does not find mention in any Presidential Notification. He contends that this issue relating to the same caste of the petitioners has been elaborately dealt with in the aforesaid decision and the claim of the petitioners therein has been negatived. The petitions were dismissed holding that the "Bhar" caste is not a Scheduled Tribe and the State Government has already included the said caste in the other backward category. The aforesaid ratio of the case has been upheld by a Division Bench in a special appeal filed against the aforesaid judgment of the learned Single Judge reported in Vijay Prakash Vs. State of U.P. and another 2005 AWC (5) Page 4298 where it has been further held that in the event if the Court attempts to include the said denotified tribe in the list of Scheduled Tribes, the same would be infringing upon the rights of the Scheduled Tribes by decreasing their quota proportionately which is impermissible and can only be done by taking recourse to Articles 341 and 342 of the Constitution of India.
This Court, however, took some contrary decisions in between but when the same came to notice they were reversed by the latest Division Bench Judgment of this Court in the case of Registrar Registrar, Vibhagiya Parikshyan (U.P.) Vs. Dinesh Kumar 2010 Volume 10 ADJ Page 390 where it has been categorically clarified that a denotified Tribe can not be equated as a Scheduled Tribe and more so such a mandamus cannot be issued by the Court. It has further been clarified in paragraph 11 that the judgments rendered by the learned Single Judge to the contrary stands overruled. Apart from this, in paragraph 5 of the said Division Bench Judgment it has been mentioned that the Akhil Bhartiya Rajbhar Maha Sabha had approached the Apex Court by filing a writ petition No. 126 of 1986 which was disposed of on 8th October, 1987 observing that the question whether the denotified tribes of Rajbhar should be included or not has to be determined by the competent authority and the said proceedings, if pending, may be concluded expeditiously.
The Court, therefore, concluded that this was beyond the realm of any adjudication by this Court to either include or exclude any caste or tribe from the Presidential Notification issued under Articles 341 and 342 of the Constitution of India.
Sri Mukerjee therefore, on the strength of the aforesaid judgments further submits that the decision relied upon by the learned counsel for the petitioners in the case of Subhash Chandra (supra) also does not come to their aid, inasmuch as the observations made in the said judgment in no way help the petitioners to bring the community of Bhar or Rajbhar within the fold of a Scheduled Tribe and the observations, at the best, can be interpreted by the Central Government in the exercise of its administrative powers provided the same is supported by any notification under Articles 341 and 342 of the Constitution of India. In order to locate a particular community or a caste as belonging to a Scheduled Tribe or not, such an exercise can be undertaken if there is any administrative circular but the circular by itself cannot be treated to be a notification under Articles 341 and 342 of the Constitution of India.
Having heard learned counsel for the parties and having perused the caste certificates of the petitioners which are annexure-3 to the writ petition, it is evident that the petitioners belong to Bhar caste and they have been issued the said certificates in view of the government order dated 17.12.1958 as amended from time to time. The certificate recites that the community of the petitioners is being treated equivalent to a scheduled tribe. In the opinion of the Court the certificate cannot travel beyond the Presidential Notification.Treating a denotified tribe equivalent to a scheduled tribe for the purpose of any benefit by the State does not amount to a declaration that the denotified tribe is a Scheduled Tribe which is also beyond the powers of the State Government. The contention, therefore, of the learned Standing Counsel is correct that the relief as prayed for to treat the petitioners as scheduled tribe cannot be granted by the Court.
In view of conclusions drawn herein above and the ratio of the decisions cited at the Bar, the petitioners cannot be extended the benefit of getting the privilege of a Schedule Tribe in the absence of a Presidential notification under Articles 341 and 342 of the Constitution of India.
The Writ Petition lacks merit and is accordingly dismissed.
Order Date :- 13.9.2012 Manish