IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 1653 OF 2008 (MS) Subhash Chandra …..Petitioner. Versus State of Uttaakhand and others. ..Respondents. Mr. Davesh Bishnoi, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. Heard Mr. Davesh Bishnoi, Advocate for the petitioner and Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State of Uttarakhand. The petitioner claims himself to be a member of “Khatik” community, which is declared as scheduled caste community, first in the State of Uttar Pradesh by a presidential order, 1950 and consequently after reorganisation of the State of Uttar Pradesh, “Khatik” community has also been recognized as a scheduled caste community in the State of Uttarakhand. On this, there is no dispute. However, when the petitioner applied for the aforesaid caste certificate, it was denied to him stating that he is, in fact, a member of “Gadaria” community, which is not a scheduled caste community. Aggrieved by the said order dated 17.10.2007, the petitioner filed a writ petition before this Court being Writ Petition No. 2603 of 2007 (MS) Subhash Chandra Vs. State of Uttarakhand and others. The sole ground alleged in the writ petition was that the said order has been passed by the Tehsildar, Kashipur without affording any opportunity of hearing to the petitioner. This writ petition was allowed and the impugned order dated 17.10.2007 was set aside by the learned Single Judge and it was directed that respondents shall proceed afresh 2 after affording reasonable opportunity of hearing to the petitioner. After affording an opportunity of hearing to the petitioner, the Tehsildar, Kashipur has now passed the order dated 20th June, 2008 by which he after considering all the relevant material has come to the conclusion that the petitioner belongs to community known as “Gadaria” and not “Khatik” and he is not liable to be given the scheduled caste certificate of “Khatik” community. Aggrieved, the petitioner has filed present writ petition challenging the order dated 20th June, 2008 and also praying for a writ, order or direction in the nature of Mandamus directing the Tehsildar, Kashipur to issue caste certificate to the petitioner showing the caste of the petitioner as scheduled caste. In order to finally adjudicate the matter, and after much persuasion of the learned counsel for the petitioner that he belongs to “Khatik” community which is a scheduled caste and much injustice is going to be caused to him, this Court vide its order dated 2nd December, 2009 had directed the Additional Chief Standing Counsel to produce the original revenue records i.e. “Khatauni” of Gram Jaspurkhurd, Tehsil Kashipur, “Khata No. 20”. Now, the revenue records have been produced before this Court by the Additional Chief Standing Counsel and this Court has examined these records. In these records, the name of the grand-father of the petitioner who is admittedly Ichchha Ram S/o Net Ram is mentioned as one belonging to community “Gadaria” community. By a separate ink, which appears to be of a later date, it has been stated that “Pal Kshatriya” should be entered. Clearly this revenue record is an important piece of evidence in order to determine the community of 3 the petitioner, where the grand-father of the petitioner has been recorded as person belonging to “Gadaria” community, which is admittedly not a scheduled caste and therefore, such a certificate cannot be granted to the petitioner. Even if it is assumed for the sake of argument that the later entry “Pal Kshatriya” is the correct entry, even then no benefit can be granted to the petitioner inasmuch as in catena of judgments, the Hon’ble Supreme Court has held that the revenue authorities cannot determine the derivative of a particular community or sub caste of particular community. In other words, in order to gain the benefit of “Khatik” community what must be on record is the entry of that person in the revenue records showing that caste. The revenue records do not show that the petitioner belongs to “Khatik” community and whether “Pal Kshatriya” is equivalent to “Khatik” is not an issue which can be decided by this Court. Let us examine this aspect in some detail. Schedule caste is defined under Article 366 (24) of the Constitution of India, which reads as follows: “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution :” Article 341 of the Constitution of India reads as follows: “341. Scheduled Castes.—(1) The President [may with respect to any State [or Union territory], 4 and where it is a State [***], after consultation with the Governor [***] thereof], by public notification, specify the castes, races or tribes or parts of or group within castes, races or tribes which shall for the purpose of this Constitution be deemed to be Scheduled Castes in relation to that State [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.” As per the aforesaid two provisions of the Constitution of India, Schedule Caste is determined by the President of India by a public notification after consultation with the Governor of that State and it becomes the scheduled caste in relation to that State or Union Territory, as the case may be by an order of the President. Therefore, the power to declare any particular caste as a scheduled caste lies with the President of India, who does so after consultation with the Governor of that State. Thereafter, this power lies only with the Parliament to include or exclude from this list of that schedule caste any caste race or tribe or part of or group within any caste, race or tribe. There is a purpose for giving this power only to the Parliament, and to none else, the powers to make any exclusion or addition in the list of a schedule caste so notified by the President. This 5 shows that great importance the Constitution makers had given to this provision inasmuch as this is a unique provision where the declaration is made first by the President of India, (notifying the caste as a scheduled caste or scheduled tribe, as the case may be), and thereafter once it is done, the power of exclusion or inclusion from this list including a sub caste etc. of that caste as a scheduled caste or a scheduled tribe is given to the higher legislative body in the country i.e. to the Parliament. This has been done so that these changes cannot be made lightly. What in effect the petitioner is seeking from this Court is an exercise of the powers, which clearly lies in the domain of the Parliament and not with this Court. In the Constitution Bench Judgment of the Supreme Court in State of Maharashtra Vs. Milind and others 2001 (1) SCC Page 4, the question was whether a tribe denoted as “Halba/Halbi”, which is declared as a scheduled tribe in the State of Maharashtra also means “Halba Koshti”. On this aspect, the Hon’ble Supreme Court as held as follows: “The jurisdiction of the High Court would be much more restricted while dealing with the question whether a particular caste or tribe would come within the purview of the notified Presidential Order, considering the language of Articles 341 and 342 of the Constitution.” The Apex Court has further stated as under: “..the High Court exceeded its supervisory jurisdiction by making a roving and in-depth examination of the materials afresh and in coming to the conclusion that “Koshtis” could be treated as “Halbas”. In this view the High Court could not upset the finding of fact in exercise of its writ jurisdiction.” 6 The Constitution Bench of the Supreme Court has further stated as under: “We have already expressed above the view in the light of Articles 341 and 342 of the Constitution of India that a Scheduled Tribes Order can be amended only by Parliament.” The Apex Court has further stated as under: “35. In order to protect and promote the less fortunate or unfortunate people who have been suffering from social handicap, educational backwardness besides other disadvantages, certain provisions are made in the Constitution with a view to see that they also have the opportunity to be on part with the other in the society. Certain privileges and benefits are conferred on such people belonging to Scheduled Tribes by way of reservations in admission to educational institutions (professional colleges and in appointments in service of State. The object behind these provisions is noble and laudable besides being vital in brining a meaningful social change. But unfortunately, even some better-placed persons by producing false certificates as belonging to Scheduled Tribes have been capturing or cornering seats or vacancies reserved for Scheduled Tribes defeating the very purpose for which the provisions are made in the Constitution. The Presidential Order are issued under Articles 341 and 342 of the Constitution of India recognising and identifying the needy and deserving people belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the constitutional purpose of availing benefit of reservation in the matters of whom they are not meant, the people for whom they are really meant or intended will be deprived of the same and their sufferings will continue. Allowing the candidate not belonging to Scheduled Tribes to have the benefit or advantage of reservation either in admissions or appointments leads to making mockery of the very reservation against the mandate and the scheme of the Constitution.” 7 Consequently, the Apex Court has laid down the positions, which are as follows: “1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950. 2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority. 4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342. 5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar and Dina v. Narain Singh did not lay down law correctly in stating that the inquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in Position (1) above no inquiry at all is permissible and no evidence can be let in, in the matter.” This power has only been given to the Parliament to make any addition or deletion from the Schedule Caste and therefore, no interference can be made by this Court on this. 8 The documents on which the petitioner is relying upon do not have the same value or credence as the revenue records, which have been examined by this Court. The petitioner is relying upon School Leaving Certificates pertaining to the year, 1999 and 2005 in order to make out his case for the “Khatik” community, where the word “Khatik” has been given in the certificates. These certificates have not much relevance for the purposes of determining the caste of the petitioner. The revenue record pertaining to the year, 1949 is on the other hand, a relevant document, in which the caste of the petitioner has been described as “Gadaria”. The petitioner has further relied upon the licence for running the meat shop pertaining to the year 2007 granted by the Municipal Board, wherein the caste of the petitioner’s father has been described as “Khatik”. There is correction and interpolation on this certificate and therefore, much reliance can not be placed on it. Moreover, once again as compared to the revenue record, it is a much fake evidence. Moreover, a copy of the licence for running the meat shop has been filed by the State Government as Annexure CA-1 to the Counter Affidavit, in which the caste of the uncle of the petitioner is described as “Pal Kshatriya”! Petitioner has further relied upon a school leaving certificate of his real sister (Annexure SA-6 to the Supplementary Affidavit), in which the caste of the petitioner’s sister has been described as “Khatik”. As already stated above, School Leaving Certificate will not have a great relevance as compared to the revenue 9 records have already been produced before this Court. Moreover, this Court fails to understand as to how a School Leaving Certificate can be given on the basis of revenue records where in the revenue records it is shown that the caste of the grand-father of the petitioner is “Gadaria”. A perusal of the impugned order dated 26.6.2008 passed by the Tehsildar, Kashipur clearly shows that the Tehsildar has not passed this order in a routine manner. He has applied his mind to the controversy in issue and has examined all the relevant records and all relevant aspects and considered the law on the subject and only thereafter he has come to the conclusion that the caste of the petitioner is not “Khatik” but “Gadaria”, which is not a scheduled caste, therefore, the petitioner cannot be granted a scheduled caste certificate. There is absolutely no merit in the petition and the order impugned is just and perfect. The writ petition is therefore, dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 10.12.2009 Rathour