Allahabad High Court
Surendra Kumar & 4 Others vs State Of U.P. & 6 Others on 7 October, 2014
Bench: Arun Tandon, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
? A F R
Court No. - 10
Case :- WRIT - C No. - 46743 of 2014
Petitioner :- Surendra Kumar & 4 Others
Respondent :- State Of U.P. & 6 Others
Counsel for Petitioner :- D.P. Rajbhar
Counsel for Respondent :- C.S.C.,A.K. Yadav,A.S.G.I./2014/10458,Gyan Prakash
Hon'ble Arun Tandon,J.
Hon'ble Anil Kumar Sharma,J.
Heard learned counsel for the petitioners as well as learned Standing Counsel for the State-respondents.
Petitioners before this Court, who are five in number, claim to be members of De-notified Tribes/Vimukta Jati. The reliefs prayed for in the present writ petition read as follows :
(i) Issue a writ, order or direction in the nature of certiorari to respondent no.2 for quashing the U. P. Government Order dated 10th June 2013 and 14th October 1999 respectively along with its performa of Caste Certificate, which incorporated all incorrect government orders and thereby restricted/banned reservation in services prescribed for De-notified Tribes (Vimukta jati) issued by the State Government in the year 1999.
(ii) Issue a writ, order or direction in the nature of mandamus to Respondent No.2 for issuing a new performa for De-notified Tribes (Vimukta jati) incorporating the correct Government order removing all ambiguous sentences.
(iii) Issue a writ, order or direction in the nature of certiorari for quashing the inclusion of De-notified Tribes (Vimukta Jati) in the list of OBC vide U. P. Act No.4 of 1994 w.e.f. 11th December 1993 [U. P. Public Services(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes Act, 1991)] only upto certain extent of illegal inclusion and disproportionate percentage increased on cost of De-notified tribes along with subsequent amendment from time to time till today.
(iv) Issue a writ, order or direction in the nature of mandamus to Respondent No.1 for allowing the petitioners of De-notified Tribes category certificate holders as a De-notified Tribes (Vimukta Jati) candidates in remaining vacant seats of BTC Training-2013 as per the availability of seats in any private or government DIETs.
(v) Issue any other writ, order or direction the Hon'ble Court deems just and proper on the facts and circumstances of the case.
(vi) Award cost of this petition to the petitioners.
We may record that issue with regards to persons belonging to De-notified Tribes being treated as Scheduled Tribes was examined for the purposes of admission in educational institution by a Division Bench of this Court in the case of Vijay Prakash Vs State of U. P. & Others in Special Appeal No.89 of 2005 decided on 4.2.2005. It has been held that the power to declare a particular Caste/Tribe as a Schedule Caste as contemplated by Article 341 of the Constitution of India and as a member of Scheduled Tribe as contemplated by Article 342 of the Constitution of India can be done only under a law to be framed by the Parliament. Other authority including the High Court has any jurisdiction to either modify the said list or to add a particular caste or tribe in the list, so notified under Article 341/342 of the Constitution of India. The issue in that regard has been settled by the Apex Court in the judgment reported in 2004 AIR SCW 6419, E. V. Chenniah Vs. State of Andhra Prdesh, which is binding upon us.
The issue with regards to Vimukta Jati to be treated as a member of Scheduled Tribe as contemplated by Article 342 of the Constitution of India is no more res integra. It may be recorded that the judgment dated 4.2.2005 passed by the Division Bench in the case of Vijay Prakash (supra) has not been subjected to any further challenge before the Apex Court and has become final
Learned counsel for the petitioners submitted that Vimukta Jati is a different caste in itself and, therefore, the State Government is not justified in treating it as one of the Other Backward Class or in issuing the Caste Certificate in the performa provided for Other Backward Class category of persons. He submits that the State must provide the Caste Certificate to the petitioners, which may depict that they belong to De-notified Tribes.
On such contention being raised by the counsel for the petitioners, this Court pointedly asked the counsel as to whether because of such issuance of Caste Certificate of De-notified Tribes, petitioners would claim any reservation or benefit from the State Government and if so, under which Government Order. The counsel for the petitioners could not respond. He only referred to the Government order, which have been issued by the other State Governments.
Learned counsel for the petitioners then turned around to refer to the Government Order dated 12.5.1961, which directs that the Vimukta Jati were entitled to special attention as is available to Scheduled Tribes in other States.
In our opinion, this Government Order cannot lead to an inference that the petitioners are to be assumed as members of Scheduled Castes or Scheduled Tribes in view of the provisions of Article 341 and 342 of the Constitution of India and the interpretation placed thereon with specific reference to the judgment of the Division Bench of this Court in the case of Vijay Prakash (supra).
The effort of the petitioners is only to gain the same benefits, which have been assigned to the members of Scheduled Tribe by camouflaging the relief. In view of the order passed by the Division Bench in the case of Vijay Prakash (supra), the contentions raised on behalf of the petitioners cannot be granted.
We may record that the State Government of Uttar Pradesh has provided benefits of reservation and other benefit to the petitioners belonging to Vimukta Jati similar to those provided to the members of Other Backward Class as is apparent from prayer no.(iii) itself.
In view of what has been recorded above, if the petitioners have any grievance qua their inclusion in Other Backward Class category or for being taken out from the Other Backward Class category, they may approach the State Government for the purposes, which shall examine all the aspects of the matter.
We make it clear that the State Government will have no power whatsoever to declare the petitioners as members of the Scheduled Caste or Scheduled Tribes or to provide them reservation and other benefits as are available to Scheduled Caste and Scheduled Tribe candidates as the power in that regard vests in the Parliament only.
Writ petition is, accordingly, disposed of.
Order Date :- 7.10.2014
himwan
