Heard learned counsel for petitioner and Sri Neearj Tiwari, learned counsel appearing for respondents.
Relief sought in the present writ petition is in the nature of mandamus commanding respondents not to charge admission fee treating petitioner candidature under the backward class category.
Petitioner who claims that he is Lodh by caste and has been declared as Scheduled Tribe in view of Government Order issued by State Government on 12.5.2005. Initially petitioner was given admission giving benefit of that Government Order but now respondents have directed to deposit the fee treating petitioner to be backward.
On the other hand, learned counsel appearing for respondents has placed reliance upon a Division Bench judgement of this Court reported in 2010 (2) ADJ, 854 State of U.P. and others Vs. Shiv Kumar Bhardwaj and others and has placed reliance upon paras 8, 9, 10 and 11 of the said judgement. The same are being quoted below:-
"8. In view of aforesaid, only question, which falls for determination is as to whether a tribe, not finding place either in the Presidential Order made under Article 342 (1) or law made by the Parliament under Article 342 (2) of the Constitution of India, can be treated as Scheduled Tribe by an Order of the State Government Clause (1) of Article 342 of the Constitution, as quoted above, provides for specification of the tribes or tribal communities or part of or groups within tribes or tribal communities as the scheduled Tribes in relation to a State or Union Territory and Clause (2) thereof confers power on the Parliament to include or exclude fro the list of Scheduled Tribes specified in the Presidential Order issued under Clause 91), any tribe or tribal communities etc. In our opinion, if any change is needed in the list appended to the Presidential Order, that can be done only by law made by the Parliament. Nobody can either include or exclude or substitute or declare synonyms of the Scheduled Tribes mentioned in the Presidential Order, except the Parliament by law. Reference in this connection can be made to a decision of the Supreme Court in the case of Prabhat Kumar Sharma v. Union Public Service Commission and others, (2006) 10 SCC 587, in which it has been held as follows:
"16. There is no dispute on the proposition that if the Presidential Notification does not contain any specific class or tirbe or a part of, then it is for Parliament to amend the law and the schedule and include in and exclude from the schedule, a tribe or tribal community or part of or group within any tribe or tribal community or part of or group within any tribe or tribal community for the State. The Courts must read the lists of the Scheduled Castes and Scheduled Tribes under Articles 341 and 342 read with Articles 366(24) and (25) as they find them and accept their ordinary list of Scheduled Castes and Scheduled Tribes. But, the Court would have the limited jurisdiction to the extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the schedule concerned. To that limited extent, the Court would have the jurisdiction but, otherwise, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to the Scheduled Castes or Scheduled Tribes or parts thereof or group of such castes or tribes."
9. We are, therefore, of the opinion that in case the State Government is satisfied that a particular tribe is to be included in the list of Scheduled Tribes and requires modification in the Presidential Order, it can make an enquiry and forward its recommendation so that a legislation is introduced in the Parliament to amend the Presidential Order. reference in this connection can be made to a decision of the Supreme Court in the case of Palghat Jilla Thandan Samudhaya Samrakshna Samithi and another v. State of Kerala and another, (1994) 1 SCC 359, in which it has been held as follows:
"21. The enquiry that was ordered by the High Court in the order under appeal to "find out whether there was a community called Thandan distinct from Ezhavas in Palghat District in areas other than in the erstwhile Chittur Taluk and also in any other place in erstwhile Malabar District" has proceeded to a conclusion on the basis of an interim order passed by this Court on January 16, 1989. It is not for the State Government or for this Court to enquire into the correctness of what is stated in the report that has been made thereon or to utilise the report to, in effect, modify the Scheduled Castes Order. it is open to the State Government, if it so deems proper, to forward the report to the appropriate authority to consider whether the Scheduled Castes Order needs amendment by appropriate legislation. Until the Scheduled castes order is amended, it must be obeyed as it reads and the State Government must treat Thandans throughout Kerala as members of the scheduled castes and issue community certificates accordingly.
10. Under our Constitutional scheme, no authority, other than the Parliament, has been conferred with the power to amend the Presidential Order,. Opinion of the State Government in regard to backwardness of a community shall not itself confer the State Government the power to declare a particular community as a Scheduled Tribe. The Supreme Court had the occasion to consider this question in the case of State of Maharashtra and others v. Mana Adim Jamat Mandal, (2006) 4 SCC 98, in which, in categorical terms, it has been held as follows:
"9. It is now well-settled principle of law that no authority, other than Parliament by law, can amend the Presidential Orders. Neither the State Governments nor the Courts nor the tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in the Presidential Orders in one entry or the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be led in, in relation to a particular caste or tribe to say whether it is included within the Presidential Orders when it is not so expressly included or exclude a particular caste or tribe or group of castes or tribes when they are expressly included."
11. A Division Bench of this Court in the case of Vijay Prakash v. State of U.P. and others, 2005 All LJ 1697, had the occasion to consider this question. In the said case, a writ petition was filed to treat the members of Bhar/Rajbhar community as belonging to Scheduled Tribes in view of Circulars and Government Orders issued by the State Government from time to time. Said writ petition was dismissed and, on appeal, the Division Bench, in paragraphs 21 and 22 of the judgement, held as follows:
"21. 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.
22. 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..."
Further reliance has been placed by learned Standing Counsel upon a Division Bench Judgement of this Court reported in 2005 (1) ESC, Allahabad, 649 Vijay Prakash Vs. State of U.P. and others. Learned Standing Counsel has submitted that the State Government itself is not competent to bring any circular or Government Order which is outside the scope of competence of State. Reservation according to provisions of Constitution is being given. Once the President of India exercising the powers has issued notification regarding scheduled castes and scheduled tribes in relation to a State, it cannot be changed or any addition can be made by the State Government is by issuing any such by respective state. Reliance has been placed upon paras 12 and 13 of the judgment. The same are being quoted below:-
"12. The scheme of the Constitution makes it clear that the persons only who had been included under the aforesaid Orders, Constitution (Scheduled Castes ) Order 1950 and Constitution (Scheduled Tribes) Order 1950, are entitled to the benefit and privileges available for Scheduled Caste and Scheduled Tribes, and it is the parliament of India alone which is competent to amend the said orders, following the procedure prescribed in Articles 341 and 342 of the Constitution. Once the President of India issued the Scheduled castes /Scheduled Tribes order in relation to a State in exercise of the powers under Article 341(1) and 342 (1) of the Constitution, even the President cannot include or exclude any caste in that order. it is the Parliament alone which can amend the said order by law. The Courts are also devoid of any power to include or exclude, to vary or substitute or declare any person to be a Scheduled Caste or Scheduled Tribes. The purpose of enacting the provisions of Articles 341 and 342 seems to be uplifting certain classes of the society who have been depressed, oppressed and suffered from backwardness in all walk of life.
13. In S.Gurmukh Singh v. Union of India and others 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 view of aforesaid facts and circumstances, the controversy raised by the petitioner have come to a rest in view of Division Bench judgements of this Court that there could be no justification for authority to declare a particular caste belonging to Scheduled Tribes for the purpose of admission in educational institution and OBC for service purposes. Such a circular order being outside the scope of the competence of the State is liable to be ignored. Therefore, there cannot be any interference by this Court while exercising powers under Article 226 of the Constitution of India.
The writ petition is devoid of merits and is hereby dismissed.
No order as to costs.
Order Date :- 21.9.2010 SKD