# Suryajeet Rajbhar and another v. State of U.P. and others

- **Citation:** (2012) 3 ILRA 1205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-13
- **Case number:** Civil Misc. Writ Petition No. 45155 of 2012
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suryajeet-rajbhar-and-another-v-state-of-u-p-and-others-42373
- **Pages:** 4

## Headnote

Constitution of India, Article 341, 342Declaration of the Caste 'Bhar' equivalent
to Scheduled Tribes-reliance placed upon
caste certificate issued by the state
authority-held-in absence of presidential
notification-no such relief could be granted
even by Writ Court.
Held: Para 12

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.
Case law discussed:
2005 Volume (1) AWC Page 811; 2005 AWC
(5) Page 4298; 2010 Volume 10 ADJ Page 390

## Text

3 All] Suryajeet Rajbhar and another V. State of U.P. and others
1205

22. In view of the foregoing
discussion, I am of the view that the
respondent no. 1 is not justified in
withholding the appointment of the
petitioner. In case if the petitioner has not
been sent for training he may be sent
immediate thereof in case if he has
completed the training in pursuance of the
direction of this Court, he may be allowed
to join the post. However, the petitioner is
not entitled for the salary for the period
during which he has not worked. The
respondent no. 1 is directed to comply the
aforesaid direction within two weeks from
the date of production of certified copy of
this order.

23. The writ petition stands allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 45155 of 2012

Suryajeet Rajbhar and another

 ...Petitioner
Versus
State Of U.P. Thru Chief Secy. And Others

 ...Respondents

Counsel for the Petitioner:
Sri Tara Chand Kaushal
Sri L.D. Rajbhar

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 341, 342Declaration of the Caste 'Bhar' equivalent
to Scheduled Tribes-reliance placed upon
caste certificate issued by the state
authority-held-in absence of presidential
notification-no such relief could be granted
even by Writ Court.
Held: Para 12

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.
Case law discussed:
2005 Volume (1) AWC Page 811; 2005 AWC
(5) Page 4298; 2010 Volume 10 ADJ Page 390

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri L.D. Rajbhar and Sri
Tara Chand Kaushal, learned counsel for
the petitioners and perused the records.

2. 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.

3. 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.
1206 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

4. 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.

5. 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.

6. 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.

7. 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.

8. 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
3 All] Suryajeet Rajbhar and another V. State of U.P. and others
1207
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.

9. 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.

10. 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.

11. 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.

12. 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
1208 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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.

13. 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.

14. The Writ Petition lacks merit
and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 46389 of 2012

Chaturbhuj and others
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Preet Pal Singh Rathore

Counsel for the Respondents:
C.S.C.
Sri Mahesh Narain Singh

Constitution of India, Article 226-Prayer
for
quashing
entire
consolidation
proceeding-on ground allotment of Chak
over Pond-without following provisions
of Roadside Control Act-petitioners have
alternative remedy to file objection
under Section 6 of the Consolidation of
Holding Act-strict in accordance with
grounds mentioned in Section 17 of the
Act-without
ex
hosting
alternative
remedy-direct
Writ
Petition-not
maintainable.

Held: Para 8

From the perusal of section 6 of the Act
read with Rule 17 of the Rules, it
transpires that the power of cancellation
of the notification under section 4 of the
Act is vested with the State Government
under section 6 of the Act and the
grounds for cancellation are mentioned
in Rule 17 of the Rules. The petitioners
herein, it appears, have done no spade
work and the writ petition has been filed
on the bald allegations without there
being any concrete detail with regard to
the irregularities in the consolidation
proceedings.
Case law discussed:
2004 (96) RD 454; 2006 (101) RD 792; 1998
(8) SCC

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. This writ petition has been filed
with the following prayers:

"1. issue a writ order or direction in
the nature of certiorari call for record
and quashing the entire consolidation
proceedings of the Gram Panchayat
Dhharaul, Tehsil Chandausi, District
Sambhal.

2. issue a writ order or direction in
the nature of mandamus directing the
respondents for not to make interfere in
the peaceful possession of the respective
land of the petitioners in pursuance of
present
consolidation
proceedings.