# Ramesh Gaur v. Mahanideshak, Karagar Prashasan and others

- **Citation:** (2008) 3 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-21
- **Case number:** Special Appeal No. 666 of 2008
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-gaur-v-mahanideshak-karagar-prashasan-and-others-41157
- **Pages:** 5

## Headnote

Constitution of India-Article 226, Article
341-appointment of petitioner as Bandi
Rakshak cancellation-on ground of forge
caste certificate-reliance based upon
State Government Notification dated
31.03.1986-held-any
executive
action
contrary
to
the
predetermined
listviolative of Article 341-apart from the
fact-fraud
vitiates
every
thingtermination
order-proper-warrants
no
interference

Held: Para 12

Therefore
any
executive
action
or
legislative enactment of the State which
interferes,
disturbs,
re-arranges,
regroups or re-classifies the various castes
found in the Presidential List will be
violative of scheme of the Constitution
and will be violative of Article 341 of the
Constitution.
Case law discussed:
(1994) 6 SCC 241, 2004 AI R SCW 6419,
Special Appeal No. 89 of 2005 decided on 4th
February-2005.

## Text

720 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 666 of 2008

Ramesh Gaur

...Appellant
Versus
Mahanideshak,
Karagar
Prashashan
Evam Sudhar Sevaen, U.P. and others

 Respondents

Counsel for the Appellant:
Sri. B.L. Yadav
Sri. K.K. Kanojiya

Counsel for the Respondents:
Sri. M.C. Chaturvedi
S.C.

Constitution of India-Article 226, Article
341-appointment of petitioner as Bandi
Rakshak cancellation-on ground of forge
caste certificate-reliance based upon
State Government Notification dated
31.03.1986-held-any
executive
action
contrary
to
the
predetermined
listviolative of Article 341-apart from the
fact-fraud
vitiates
every
thingtermination
order-proper-warrants
no
interference

Held: Para 12

Therefore
any
executive
action
or
legislative enactment of the State which
interferes,
disturbs,
re-arranges,
regroups or re-classifies the various castes
found in the Presidential List will be
violative of scheme of the Constitution
and will be violative of Article 341 of the
Constitution.
Case law discussed:
(1994) 6 SCC 241, 2004 AI R SCW 6419,
Special Appeal No. 89 of 2005 decided on 4th
February-2005.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Sri B.L. Yadav, learned counsel
for
appellant
and
learned
Standing
Counsel for the respondents.

2. This special appeal has been
preferred against the judgment and order
passed by the learned Single Judge dated
29th April, 2008 dismissing the writ
petition filed by the appellant. The writ
petition was directed against the order
passed by the Senior Superintendent,
Divisional/District Jail, Gorakhpur dated
9th April, 2008 terminating/cancelling the
appointment of the appellant as Bandi
Rakshak.

3. Brief facts necessary for deciding
the special appeal are that in response to
the advertisement dated 14th May, 2003,
for filling up the backlog vacancies
belonging
to
the
Scheduled
Caste
category, petitioner-appellant made an
application claiming himself to be a
member of Scheduled Caste category. On
the basis of caste certificate submitted by
the appellant, he was selected as Bandi
Rakshak on 31st July, 2003. The caste
certificates, which were submitted by the
appellant and other selected candidates
were sent for verification to the respective
districts and Tehsils from where such
caste certificates were obtained. Report
was submitted by the Tehsildar Sadar,
Gorakhpur on 7th January, 2008 to the
effect that the caste certificate submitted
by the petitioner was never issued by the
Tehsil-authority. Thereafter a show-cause
notice dated 15th January, 2006 was
issued to the petitioner calling for his
explanation. The appellant submitted his
reply stating that the caste certificate was
issued by the Tehsildar concerned on 4th
July, 1989, therefore, re-verification be
3 All] Ramesh Gaur V. Mahanideshak, Karagar Prashasan and others
721
made. The papers were again forwarded
to the Tehsildar concerned for reverification, he submitted his report on 7th
March,
2008
recording
that
such
certificate (as claimed by the appellant)
was never issued by his office on 4th July,
1989. Thereafter appellant was called for
personally on 7th April, 2008. Not being
satisfied with the reply submitted by the
appellant qua the validity of the caste
certificate dated 4th July, 1989, the Senior
Superintendent, Divisional/District Jail,
Gorakhpur vide order dated 9th April,
2008 has cancelled the appoint of the
petitioner-appellant.
This
order
was
challenged before this Court by means of
writ petition no. 21499 of 2008. The
learned Single Judge has recorded that the
appellant having been failed to prove that
he belongs to Scheduled Caste Category
and since the caste certificate submitted
by the petitioner was found forged, no
error has been committed in cancelling
the appointment of the petitioner.

4.

Learned
counsel
for
the
petitioner-appellant questioning the order
of Hon'ble Single Judge contends that
State
Government
has
issued
a
notification dated 31st March, 1986, in
which caste 'Gond' is included in the list
of Scheduled Caste. On the strength of
said notification, the appellant was issued
the caste certificate. He further contends
that procedure for cancelling the caste
certificate has not been followed. He has
placed reliance upon the judgment of the
Hon'ble Supreme Court of India in the
case of Kumari Madhuri Patil & Anr vs.
Addl. Commissioner, Tribal Development
& Ors.; (1994) 6 SCC 241.

5.

We
have
considered
the
submissions made by the learned counsel
for the parties and have perused the
records.

6. It is not in dispute that the caste
certificate which was submitted by the
petitioner-appellant for his being a
Scheduled Caste category candidate dated
4th July, 1989, (brought on record as
Annexure-1 to the writ petition), has not
been verified by the Tehsildar, Sadar,
Gorakhpur. His report records that no
such certificate was ever issued by the
Tehsil-authority
in
favour
of
the
appellant. After receiving the report, an
opportunity was afforded to the petitioner
to
prove
that
the
caste certificate
submitted by him was genuine. Petitioner
could not prove the authenticity of such
certificate. The respondents, therefore, did
not commit any error in coming to the
conclusion that the certificate submitted
by the appellant was forged and hence
rightly
set
aside
his
selection/appointment.

7. The learned counsel for the
appellant has vehementally argued that
the caste 'Gond' is included in the list of
Scheduled Caste as per the notification
dated 31st March, 1986 issued by the State
Government.

8. Suffice is to point out in the facts
of the case that the caste certificate which
was submitted by the appellant has been
found to be forged, it is, therefore, not
necessary for this Court to express any
opinion on the aforesaid contention.
However, in view of the fact that the
appellant has pressed his submission, we
proceeded to consider the same also:

9. Article 341 of the Constitution of
India provides for various castes, races,
722 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
tribes, to be treated as Scheduled Caste in
relation to a State and reads as follows:

"341. Scheduled Castes.-(1) The
president [may with respect to any State
[or Union Territory], 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 groups within castes, races or tribes
which shall for the purposes 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. "

10. According to the constitutional
provision, it is the power of the President
to issue the notification after consultation
with the Governor of the State, specifying
the castes, races or tribes, which shall for
the purposes of the constitution be
deemed to be Scheduled Caste in relation
to the State concerned. Thereafter it is the
power of the Parliament to include or
exclude from the list of Scheduled Castes
specified in a notification. The bare
reading of Article 341 of the Constitution
indicates that State Government has no
power to amend the Scheduled Castes list
by a notification as claimed in the facts of
the present case vide notification dated
31st March, 1986.

11. In E.V. Chenniah Vs. State of
Andhra Pradesh, 2004 AI R SCW 6419,
the Apex Court examined a similar issue
and held as under-
"Article 341 which is found in Part
XVI of the Constitution refers to special
provisions relating to certain classes
which includes the Scheduled Castes. This
Article provides that the President may
with respect to any State or Union
Territory after consultation with the
Governor thereof by Public Notification,
specify the castes, races or tribes or parts
of or groups within castes, races or tribes
which shall for the purposes of this
Constitution be deemed to be Scheduled
Castes in relation to that State or Union
Territory. This indicates that there can be
only one List of Scheduled Caste in
regard to a State and that List should
include all specified castes, races or
tribes or part or groups notified in that
Presidential
List.
Any
inclusion
or
exclusion from the said list can only be
done by the Parliament under Article 341
(2) of the Constitution of India. In the
entire Constitution wherever reference
has been made to "Scheduled Castes" it
refers only to the list prepared by the
President under Article 341 and there is
no reference to any sub-classification or
division in the said list except, may be, for
the limited purpose of Article 330, which
refers
to
reservation
of
seats
for
Scheduled Castes in the House of People,
which is not applicable to the facts of this
case. It is also clear from the above
Article 341 that except for a limited
power of making an exclusion or
inclusion in the list by an Act of
Parliament there is no provision either to
sub-divide, sub-classify. or sub-group
these castes which are found in the
Presidential List of Scheduled Castes.
----------------
This part of the Constituent Assembly
Debate coupled with the fact that Article
341 makes it clear that the State
Legislature or its executive has no power
3 All] Ramesh Gaur V. Mahanideshak, Karagar Prashasan and others
723
of "disturbing" (term used by Dr.
Ambedkar) the Presidential List of
Scheduled Castes for the State.
----------------

12. Therefore any executive action
or legislative enactment of the State
which interferes, disturbs, re-arranges, regroups or re-c1assifies the various castes
found in the Presidential List will be
violative of scheme of the Constitution
and will be violative of Article 341 of the
Constitution."

13. The Division Bench of this
Court in the case of Vijay Prakash vs.
State of U.P. & Ors, passed in Special
Appeal No. 89 of 2005 decided on 4th
February, 2005, has held that the State
Government has no power to include or
exclude any Caste from the list of
Scheduled Castes notified under Article
341 of the Constitution. The Division
Bench has held as follows:

"The scheme of the Constitution
makes it clear that the persons only who
had been included under the aforesaid
Orders, Constitution (Scheduled Tribes)
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 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. "

14. Thus the notification issued by
the State Government dated 31st March,
1986 does not help the petitionerappellant.

15. So far as the judgment of the
Hon'ble Supreme Court in the case of
Kumari
Madhuri
Patil
(Supra)
is
concerned, it may be noticed that the said
case deals with the procedure for issuance
of a certificate of Scheduled Caste or
Other Backward Class category to be
submitted
for
admission.
The
said
judgement does not help the appellant.

16. It is also pertinent to mention
that under the provisions of Uttar Pradesh
Services
(Reservation
for
Scheduled
Castes, Scheduled Tribes and Other
Backward
Classes)
Act,
1994
in
Definition clause (b), it is provided that
other backward classes of citizens means
the backward classes citizens specified in
Schedule to the Act of 1994. The State
may amend Schedule-I of 1994, Act by
exercising the power under sub-Section 2
(b) of Act, 1994 but it does not empower
the State to issue notification with regard
to the Scheduled Castes. Hence there is no
power with the State Government to
amend the list of Scheduled Castes
exercising any power under Act, 1994.
724 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

17. In view of the aforesaid, there is
no illegality or infirmity in the judgement
and order passed by the learned Single
Judge.

18. The special appeal lacks merit
and is accordingly dismissed.
------------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Application No. 231 of 2005

U.P.S.R.T.C.

... Petitioner
Versus.
Chhakauri Lal and others Respondents

Counsel for the Petitioner:
Sri Rahul Anand Gaur

Counsel for the Respondents:
Sri S.N. Dubey
Sri A.R. Dwivedi
Sri. Prabhakar Chandel
S.C.

Constitution
of
India,
Article
226Termination of services-on allegation the
workman being driver under influence of
liquor
found
on
duty-Labour
court
recorded specific finding-about any piece
of evidence in support of allegation, nor
any
medical
examination
report
produced-no illegality shown in the
award given by Labour Court-cannot be
interfered under writ jurisdiction.

Held: Para 12 & 13

The
workman
was
not
even
got
medically examined in this regard and no
medical record was produced in the
domestic inquiry proceedings or even
before the labour court.

In my opinion that if bus driver person
falls ill or sick in route to destination, it
cannot be said that he has committed a
misconduct by not taking the bus to its
terminal. Since the employer has failed
to prove their case and to show any
illegality or infirmity in the award of the
labour court I am not inclined to
interfere in the findings facts recorded
by the labour court in this case.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
petitioner, learned counsel for respondent
and Sri S.N. Dubey.

2. The petitioner-Regional Manager,
UPSRTC, Jhansi Region, Jhansi has filed
this writ petition.

3. The facts of the case are that
respondent no. 1, Chhakauri Lal was a
driver in the Corporation. His services
were terminated w.e.f. 21.9.2001 after
holding domestic enquiry on charge of
driving bus under influence of liquor.

4. In the domestic inquiry the stand
of the workman stated that his services
have not been terminated for any corrupt
practice; that he does not ever take liquor
or intoxicating drink and no medical
certificate has been produced by the
employer in the enquiry to establish that
he was under the influence of liquor while
driving the bus for which alleged act of
misconduct,
his
services
has
been
terminated. In his defence he also
submitted that while he was the driving
bus on 3.1.1993 on Kanpur Manoba route,
he became very sick and therefore
stopped the bus at Maudha. Thereafter he
requested the conductor to get a reliever
driver.