# Swaroop Chand Singh v. State of U.P. and Ors - **Citation:** (2013) 2 ILRA 1103 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2013-07-05 - **Bench:** Sunil Ambwani, Bharat Bhushan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/swaroop-chand-singh-v-state-of-u-p-and-ors-42565 - **Pages:** 3 ## Headnote Constitution of India, Art.-341(1)and (2)- Whether 'Kasera' is sub cast of "Shilpkar"?-question referred to larger Bench. Held: Para-13 It is pertinent to refer here that the 'Kasera' was included in Schedule-I with reference to Section 2 (b) of U.P. Public Services (Reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 at serial no.54:- "54, Kasera, Thathera, Tamrakar in the list of Other Backward Classes." The UP Act of 1994 did not amend the List of Scheduled Caste inasmuch as the said List can only be amended by the Parliament under Article 341 (2) of the Constitution of India under its statutory powers. Case Law discussed: Service Bench No. 2080 of 2011; Civil Appeal No. 5821 of 2012. ## Text 2 All] Swaroop Chand Singh Vs.State of U.P. and Ors. 1103 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.07.2013 BEFORE THE HON'BLE SUNIL AMBWANI, J. THE HON'BLE BHARAT BHUSHAN, J. Civil Misc. Writ Petition No. 35775 OF 2013 Swaroop Chand Singh ...Petitioner Versus State of U.P. and Ors. ...Respondents Counsel for the Petitioner: Sri Saurabh Kumar Counsel for the Respondents: C.S.C. Constitution of India, Art.-341(1)and (2)- Whether 'Kasera' is sub cast of "Shilpkar"?-question referred to larger Bench. Held: Para-13 It is pertinent to refer here that the 'Kasera' was included in Schedule-I with reference to Section 2 (b) of U.P. Public Services (Reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 at serial no.54:- "54, Kasera, Thathera, Tamrakar in the list of Other Backward Classes." The UP Act of 1994 did not amend the List of Scheduled Caste inasmuch as the said List can only be amended by the Parliament under Article 341 (2) of the Constitution of India under its statutory powers. Case Law discussed: Service Bench No. 2080 of 2011; Civil Appeal No. 5821 of 2012. (Delivered by Hon'ble Sunil Ambwani, J.) 1. We have heard Shri Saurabh Kumar, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents. 2. By this writ petition the petitioner has prayed for directions to the District Magistrate, Mirzapur to issue a Scheduled Caste certificate in the name of petitioner's son Tarang Singh. 3. The reason, for which Shri Tarang Singh, who is minor, has not been impleaded in the writ petition, has not been stated. The petitioner is given liberty to file an appropriate application impleading Tarang Singh, through his father-the petitioner as petitioner no.2. 4. It is submitted that the District Magistrate has not issued caste certificate, despite repeated applications. 5. The petitioner has relied upon a Division Bench judgment of Lucknow Bench of this Court in Service Bench No.2080 of 2011 (State of UP vs. Vijay Shankar & another) decided on 23.12.2011. 6. We have perused the judgment and do not agree with the reasoning, which has far reaching effect on the issuance of caste certificates to the persons belonging to 'Kasera' caste as Scheduled Caste, and will discriminate other notified castes as Scheduled Castes. 7. The facts given in the judgment cited by the petitioner, and annexed as Annexure no.3 to the writ petition that Shri Vijay Shankar-the opposite party was appointed as Assistant Prosecution Officer on the recommendation of the UP Public Service Commission in the reserved category of the Scheduled Caste vide a Certificate issued by the Tehsildar, 1104 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 Mirzapur dated 2.2.1987 certifying that he belongs to 'Shilpkar' caste. Later, on a complaint made on the ground that he has obtained appointment by submitting a forged Scheduled Caste certificate and that he actually belongs to 'Kasera' caste as verified in his school certificate, he was dismissed from service on 21.5.2007. Aggrieved he filed a claim petition before the U.P. State Public Services Tribunal, which set aside the punishment order with directions to be reinstated with all consequential service benefits. 8. The questions, which arose before the Division Bench, was whether Shri Vijay Shanker was issued the caste certificate by the Tehsildar, Mirzapur on 2.2.1987. It was pleaded on behalf of the District Magistrate, that no such caste certificate was issued between the years 1983-1985 pertaining to the 'Kasera' caste being a Scheduled Caste. On an enquiry made by the District Magistrate it was found that said certificate was not issued. 9. The Division Bench observed that it is not mandatory to make an entry for issuing every certificate and then proceeded to examine the caste certificate of father and mother of Shri Vijay Shanker and found that they were categorised in the National Citizens Register as 'Shilpkar'. It proceeded further to hold that the Tribunal observed that 'Kasera' is a sub-caste of 'Shilpkar' as per Government Order dated 12.12.1950, and in fact there are 26 sub-castes of 'Shilpkar', of which 'Kasera' is one of them. The Court held that thus 'Kasera' as a sub-caste of 'Shilpkar' comes under the category of Scheduled Caste. 10. We do not subscribe to the reasoning given in the judgment on the grounds that it is mandatory for the Tehsildar, who is the competent authority to issue caste certificate to maintain a register and make an entry for issuing certificate with serial number and date and that when the District Magistrate had categorically stated that no such caste certificate was issued, the Court could not have recorded the findings contrary to pleading on the ground that it was not mandatory to make an entry to issue a caste certificate. We, however, find that this is a question of fact, on which the State should have filed a review petition or preferred an appeal to the Supreme Court. 11. The other finding, that 'Kasera' is a sub-caste of 'Shilpkar', is based upon a Government Order dated 12.12.1950. In our opinion, this finding is not based on correct appreciation of facts and law. Since the finding is going to affect a large number of persons belonging to notified Scheduled castes and that the persons, belonging to sub-caste of 'Kasera' may apply and occupy the vacancies reserved for Scheduled Caste, it is necessary to refer the matter to larger bench. The reasons for our disagreement are as follows:- 12. Under Article 341 (1) of the Constitution of India the List of Scheduled Caste with respect to any State can be notified only by a Presidential Order after consultation with the Governor of that State, by public notification. The Presidential Order 1950 was amended by an Amendment Act in 1976 and thereafter in 1991 in which in Part 18 of the Schedule only 66 castes were notified as Scheduled Caste for the State of UP. The Government of U.P. by Government Order dated 10.7.1986 notified the same 66 castes as Scheduled Caste and 2 All] Subhash Chandra Sharma Vs. Naresh Chand Jindal 1105 which includes 'Shilpkar' at serial no. 65. The Presidential Order or the notification of the State Government does not include any subcaste for any of the 66 notified Scheduled Caste. The State Government or the High Court does not have a power to expand the notified Scheduled Caste by adding any subcaste, race, tribe or any group within that caste. The Courts have not been given powers to expand the scope of the caste by adding sub-caste vide Kavita Solanke vs. State of Maharashtra and others Civil Appeal No.5821 of 2012 decided by Supreme Court of India on 9.8.2012. In this judgment the Supreme Court held that the Courts could not and should not expand their jurisdiction while dealing with the question as to whether a particular caste or sub-caste, tribe or sub-tribe was included in any one of the Entry mentioned in the Presidential Orders issued under Article 341 and 342 of the Constitution. Even the Governor of the State in exercise of his executive powers or State Government cannot add or delete any caste from such notification We have made the reference of the notifications from Sewa Vidhi by Shri V.K. Singh published by Aliya Law Agency (Pages 136 and 137). 13. It is pertinent to refer here that the 'Kasera' was included in Schedule-I with reference to Section 2 (b) of U.P. Public Services (Reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 at serial no.54:- "54, Kasera, Thathera, Tamrakar in the list of Other Backward Classes." The UP Act of 1994 did not amend the List of Scheduled Caste inasmuch as the said List can only be amended by the Parliament under Article 341 (2) of the Constitution of India under its statutory powers. 14. In case 'Kasera' caste was included as sub-caste of Shilpkar in the Presidential Order or any amendments made by Parliament, there was no need to include 'Kasera' in the List of OBC in Schedule I of the UP Act of 1994. 15. On the aforesaid reasoning, we disagree with the judgment and refer the following questions to be considered by the larger bench:- "(1) Whether 'Kasera' is a sub-caste of 'Shilpkar' which is notified in the category of Scheduled Caste under Article 341 (1) and (2) of the Constitution of India? (2)Whether the judgment dated 23.12.2011 in Service Bench No.2080 of 2011 (State of UP and another vs. Vijay Shanker and another) is correct in law?. 16. Let the papers be placed before Hon'ble the Chief Justice for nominating a larger bench to decide the matter. --------- ORIGINAL JURISDICTION CIVIL- SIDE DATED: ALLAHABAD 16.07.2013 BEFORE THE HON'BLE RAJES KUMAR, J. Civil Misc. Writ Petition No.36202 of 2013 Subhash Chandra Sharma ...Petitioner Versus Naresh Chand Jindal ...Respondents Counsel for the Petitioner: Sri M.A. Qadeer, Sri Mohd. Hisham Quadeer Sri Shamim Ahmad Counsel for the Respondents: Sri B.D. Mandhyan, Sri Sanjay Kumar