# Swaroop Chand Singh v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 748
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-29
- **Case number:** Civil Misc. Writ Petition No. 35775 of 2013
- **Bench:** Sunil Ambwani, Devendra Pratap Singh, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/swaroop-chand-singh-v-state-of-u-p-ors-42969
- **Pages:** 12

## Headnote

Constitution Of India, Art.-341(1)&(2)-
Whether 'Kasera' is sub caste of Shilpkar
in category of scheduled case? held-'No'-
Law laid down by Division Bench in Vijay
Shankar case is not correct law.

Held: Para-26&30

## Text

_Characters 0–39,969 of 40,124. This is a partial read: ask again with offset=39969 for what follows._

748 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Commission
while
issuing
the
advertisement in the year 2014, wherein
column no. 20 indicates "specified post
details with other essential qualification".

16. In the light of this ambiguity
contained in column no. 20 of the
application form, the Court is of the
opinion that the benefit of this ambiguity
is required to be given to the petitioners.
Since the petitioners are eligible for the
post Designated Officer and they have
obtained more marks than the cut-off
marks depicted by the Commission, the
Court is of the opinion that the candidates
being eligible should be permitted to
appear in the Mains Examination, which
is going to be held on 01.07.2014. The
Court has been informed that the last date
for deposit of the fee for the Main
Examination is 14.06.2014 and the last
date for submission of the form is
23.06.2014.

17. In the light of the aforesaid, we
allow the writ petitions.

18. A writ of mandamus is issued to
the
Uttar
Pradesh
Public
Service
Commission, Allahabad directing them to
include the name of the petitioners in the list
for the post of Designated Officer. The
Commission is further directed to accept
their
fee
and
forms
for
the
Main
Examination. Since the last date of deposit of
fee is 14.06.2014 and time is short, we,
accordingly, direct the Commission to extend
the date for deposit of fee by 21.06.2014.
The forms can be accepted by 23.06.2014.

19. In the circumstances of the case
parties shall bear their own cost.

20. A certified copy of this order be
made available to the learned counsel for
the parties by Monday 16.06.2014 on
payment of usual charges.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2014

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DEVENDRA PRATAP SINGH, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Civil Misc. Writ Petition No. 35775 of 2013

Swaroop Chand Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Mehta, Sri Saurabh Kumar, Sri
P.S. Gupta
Sri Ravi Kant, Sri Ram Raj Prajapati, Sri
Rakesh Kumar Gupta

Counsel for the Respondents:
Sri Ramesh Upadhyay, C.S.C.
Sri Vivek Shandilya (Addl. C.S.C.)

Constitution Of India, Art.-341(1)&(2)-
Whether 'Kasera' is sub caste of Shilpkar
in category of scheduled case? held-'No'-
Law laid down by Division Bench in Vijay
Shankar case is not correct law.

Held: Para-26&30
26. On the aforesaid findings, we decide
the Question No.1 to the effect that
'Kasera' is not a sub caste of 'Shilpkar'.
The persons belonging to 'Kasera' or any
other sub caste, which were included in
Note 4 of Appendix-A of Part-VIII of the
list
of
the
Constitution
(Scheduled
Castes) Order 1950 are not entitled to
get
certificates
to
belong
to
the
Scheduled Caste.

30. On the aforesaid discussion, we also
answer the question No.2 in negative,
and hold that the judgment dated
23.12.2011, rendered by the Lucknow
2 All] Swaroop Chand Singh Vs. State of U.P. & Ors.
749
Bench of the Court in State of Vs. Vijay
Shankar and another - Writ Petition
(Service Bench) No. 2080 of 2011, is not
correct in law.

Case Law discussed:
[2001 (1) SCC 4]; [2004 (2) SCC 105];
[2007(14) SCC 481]; [2005 (7) SCC 690];
[2008(4) SCC 612]; [2005(2) AWC 1848]; [AIR
1965 SC 1557]; [(1996) 3 SCC 585]; [(1996) 3
SCC 100]; [(1996) 4 SCC 431]; [(1996) 8 SCC
264]; [(1997) 3 SCC 406]; [(2007) 5 SCC
360].

(Delivered by Hon'ble Sunil Ambwani, J)

1. We have heard Sri Ravi Kant,
Senior Advocate, assisted by Sri Ram Raj
Prajapati and Sri Ashok Mehta, Senior
Advocate assisted by Sri Saurabh Kumar,
for the petitioner. Sri Rakesh Kumar Gupta
appears for Sri Hari Sharan Gautam
(Intervenor). Sri Ramesh Upadhyay, learned
Chief Standing Counsel assisted by Sri
Vivek Shandilya, Additional Chief Standing
Counsel appear for State respondents.

2. This reference arises out of a
difference of opinion expressed by a
Division Bench presided by one of us
(Hon'ble Sunil Ambwani, J) with the
Division Bench judgement of Lucknow
Bench of the Court in Service Bench
No.2080 of 2011 (State of UP Vs. Vijay
Shankar
&
another)
decided
on
23.12.2011. The questions, which have
been referred to be considered by this
larger Bench, are as follows:-

"(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?"

3. The facts giving rise to the Writ
petition No. 35775 of 2013 are that Sri
Swaroop Chand Singh son of Srichandra -
the petitioner claims that he belongs to
'Kasera' caste, which according to him is a
sub-caste of 'Shilpkar', and falls within the
category of Scheduled Caste, as notified
under Article 341 of the Constitution of
India. The petitioner applied to the
District Magistrate, Mirzapur to issue a
caste certificate for his minor son Tarang
Singh, to verify that he belongs to
Scheduled Caste for claiming admission
to any College. In the writ petition, the
petitioner has prayed for a writ, order or
direction in the nature of mandamus
directing respondent No.2 - the District
Magistrate, district Mrizapur to issue a
Scheduled Caste Certificate in the name
of petitioner's son namely Tarang Singh in
the light of judgement and order dated
23.12.2011 passed in Writ Petition No.
2080 of 2011 (State of U.P. And others
Vs. Vijay Shankar and another), within a
period specified by the Court.

4. The petitioner has relied on the
judgment dated 23.12.2011 of Lucknow
Bench of the Court in Writ Petition No.
2080 of 2011 - State of U.P. and others
Vs. Vijay Shankar and another (Supra), in
which a Division Bench, sitting at
Lucknow Bench, considered the challenge
of the State of U.P to the judgment of the
U.P. State Public Services Tribunal by
which the Tribunal granted the relief to
Sri Vijay Shanker, who was appointed as
Assistant Prosecution Officer on the
recommendation of the U.P. Public
Service Commission by virtue of a
Scheduled Caste Certificate issued by the
Tehsildar, Mirzapur dated 02.02.1987.
750 INDIAN LAW REPORTS ALLAHABAD SERIES
The said certificate verified that he
belongs to 'Shilpkar' caste. Later on, a
complaint was made against Sri Vijay
Shankar on the ground that he has
obtained the appointment by submitting
forged
Scheduled
Caste
Certificate;
actually, the caste of Sri Vijay Shankar
was recorded as 'Kasera' in School
Certificate. On this ground, he was
dismissed from service vide order dated
21.05.2007. The U.P. Public Services
Tribunal granted the relief to him by
setting aside the punishment order and
reinstated him with all consequential
service benefits and continuity in service.
The Division Bench in its judgment dated
23.12.2011, dismissed the writ petition
filed by the State of U.P holding that on a
perusal of records, it appears that the
Collector
has
written
a
letter
on
14.12.2005, wherein he has mentioned
that no certificate was issued during the
year 1983-85, pertaining to the 'Kasera'
caste being a Scheduled Caste. For this
purpose, an enquiry was made by the
Collector from all the Tehsils, but the fact
remains that no specific query was made
from the Tehsildar, Mirzapur, who had
issued the said certificate. Moreover, it
was not mandatory to make an entry for
issuing every certificate. The Division
Bench further observed that the Tribunal
examined the National Citizen Register
wherein it was shown that opposite party's
parents names were mentioned as Sri
Laxmi Narain Son of Mata Prasad and
mother Smt. Suraj Mani wife of Laxmi
Narain and they were categorized as
'Shilpkar', which admittedly belongs to
Scheduled Caste. The Tribunal also
observed that 'Kasera' is a sub caste of
'Shilpkar' as per Government Order dated
12.12.1950, and that there are 26 sub
castes of 'Shilpkar', and 'Kasera' is one of
them. Thus, 'Kasera' being a sub caste of
'Shilpkar' comes under the category of
Scheduled Caste. When it is so, then it
was found that there was no reason to
interfere with the impugned order passed
by the Tribunal.

5. Sri Ravi Kant, Senior Advocate,
assisted by Sri Ram Raj Prajapati
appearing for the petitioner submits that
'Shilpkar' has been notified by the
President of India as Scheduled Caste in
the Constitution (Scheduled Castes) Order
1950 in Part VIII Uttar Pradesh at Sl.
No.62. 'Shilpkar' is a generic name of
community who have been socially,
economically and educationally deprived
of their rights. Prior to Independence of
India, in the census report of 1931 by J.S.
Hutton, the petitioner's community was
shown in the category of 'depressed class',
and on the basis of the said report, the
community
after
Independence
was
shown in the category of Scheduled Caste
being 'Shilpkar' and 'Kumhar', after
following the terms and conditions as
provided
under
law.
The
State
Government after the directions of the
Government
of
India,
directed
the
Anusuchit Jati Evem Anusuchit Janjati
Shodh Evem Prashikshan Sansthan, to
submit an ethnographic report about the
status
of
the
community
of
Prajapati/Kumhar. On the basis of the
report, the State Government found that
the status of the community is lower in
status than other communities, and the
State Government thus sent its report with
a proposal for providing benefit for
including it in the category of Scheduled
Caste.
The
State
Government
subsequently on the basis of Government
Order dated 12.09.1950, and the decision
taken in Writ Petition No. 2080 of 2011,
provided an interim benefit, as given to
the community of the Scheduled Caste.
2 All] Swaroop Chand Singh Vs. State of U.P. & Ors.
751
The community in the category of
'Shilpkar' is thus entitled to all benefits as
provided in the State list to the
community of Scheduled Caste.

6. Sri Ravi Kant further submits that
this Court has permitted Uttar Pradeshiya
Prajapati Mahasabha (Registered) through its
Pramukh Mahasachiv Sri Heera Lal Son of
Late Budhai R/o Moahalla Near Bari Vihari,
Ram Rai Patti, Post Shiva Park, Line Bazar,
Jaunpur to be heard in the proceeding. He
submits that admittedly 'Shilpkar' is a
notified Scheduled Caste and that there are
26 sub castes of 'Shilpkar', which were so
notified in the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act
1956 (Act No. 63 of 1956) by putting a note
under Part-VIII-Uttar Pradesh. All these sub
castes were classified as 'depressed classes'
as per census report of 1931, and thus they
cannot be denied the benefit of castes
certificate, issued to these sub castes
including 'Kasera' as a sub caste of 'Shilpkar'
caste, notified as Scheduled Caste.

7. Sri Ashok Mehta submits that
Note
(4)
to
Appendix
A
to
the
Government Order dated 12.09.1950,
provided 26 sub castes within the caste of
'Shilkpar' notified as Scheduled Caste in
the State of U.P. at Sl. No. 62 of the
Government Order dated 12.09.1950.
Note 4 reads as follows:-

"Within Shilpkar - Atpahariya, Auji,
Barhai, Beda, Bhat, Kumbar, Koli, Lohar,
Rudia,
Sunar,
Pahri,
Jogi,
Dhunar,
Chhipli, Dhoni, Kolai, Jhumariya, Tamta,
Kasera, Dhaloti, Vakhariya, Kolta, Halia,
Hurakya, Bhul and Chunariya.".

8. Sri Ashok Mehta further submits
that if any enquiry is to be made whether
'Kasera' is a sub caste of 'Shilpkar', the
State is competent to refer the matter first
at the District Level Scrutiny Committee
and thereafter to the State Level Scrutiny
Committee which have been constituted
in the State of U.P. He has relied on the
judgment of the Supreme Court in Kavita
Solunke Vs. State of Maharashtra and
others in Civil Appeal no. 5821 of 2012
decided on 9.8.2012, in which following
the judgment in State of Maharashtra Vs.
Milind [2001 (1) SCC 4], as explained in
R. Vishwanatha Pillai Vs. State of Kerala
[2004 (2) SCC 105; State of Maharashtra
Vs. Sanjay K. Nimje [2007 (14) SCC 481;
Bank of India Vs. Avinash D. Mandivikar
[2005 (7) SCC 690] and Union of India
Vs. Dattatray [2008 (4) SCC 612], it was
held that if a person has secured
appointment or admission on the basis of
false caste certificate, he cannot retain the
said certificate obtained by him, and the
Courts
will
refuse
to
exercise
its
discretionary jurisdiction depending upon
the facts and circumstances of each case.
Relying on Nimje's case, it was held that
since there was no allegation against the
appellant that she had fabricated or
falsified the particulars of being a
Scheduled Tribe only with a view to
obtain an undeserved benefit in the matter
of appointment as a teacher, there is no
reason why the benefit of protection
against ouster should not be extended to
her, subject to the usual condition that the
appellant shall not be ousted from service
and shall be reinstated if already ousted,
but she would not be entitled to any
further benefit on the basis of certificate,
which she has obtained, and which was 10
years after its issue cancelled by the
Scrutiny Committee.

9. Sri Rakesh Kumar Gupta
appearing for Sri Hari Sharan Gautam
who claims to be President of Dr. B.R.
752 INDIAN LAW REPORTS ALLAHABAD SERIES
Ambedkar Granthalaya Evam Jan Kalyan
Samiti, Gorakhpur and was allowed to
intervene submits that previously in the
year 2005, the Government of U.P
illegally included 16 OBC castes in the
list of Scheduled Caste. A Public Interest
Litigation No. 76922 of 2005 (Dr. B.R.
Ambedkar Granthalaya Evam Jan Kalyan
Samiti Vs. State of U.P. And others) was
filed wherein a Division Bench of the
Court granted stay order against that
notification of the State Government. He
submits that benefit of reservation for
Scheduled Caste cannot be given, except
in accordance with notification by the
President under Article 341 (1) or the
notification under Article 341 (2) of the
Constitution of India, and in any case the
State Government does not have authority
to include any caste or sub caste in the list
of Scheduled Caste, notified under Article
341 (1) or (2) of the Constitution of India.

10. The Uttar Pradesh Public
services (Reservation) for Scheduled
Castes, Scheduled Tribes and Other
Backward Classes) Act 1994, lays down
the percentage of reservation in public
services and posts at 21 % for Scheduled
Castes; 2 % for Scheduled Tribes and 27
% for Other Backward Classes of citizens.
The term 'other backward classes of
citizens' has been defined in Section 2 (b)
of the Act as 'backward classes of citizens
specified in Schedule-I'. The Schedule-I
of the Act notified 66 other backward
classes of citizens, which include 'Kasera,
Thathera, Tarakhar' at Sl. No. 59.

11. The notification including the 26
sub castes of 'Shilpkar', alleged to be
included in the Appendix-A of the
Constitution (Scheduled Castes) Order
1950 was amended by Scheduled castes
and
Scheduled
Tribes
Orders
(Amendment) Act 1956, and thereafter by
Scheduled Castes and Scheduled Tribes
Lists (Modification) Order 1956, by
which entire Appendix-A to Part-VIII was
omitted.

12. It is submitted by Sri Rakesh
Kumar Gupta that 'Kasera' is not a caste,
which is a sub caste of 'Shilpkar' which
has its own identity. He submits that
considering the background of castes in
the State of U.P., 'Kasera' and other sub
castes are included in the notified list of
Other Backward Classes.

13. Sri Ramesh Upadhyay, learned
Chief Standing Counsel appearing for the
State has filed an affidavit of Sri Ram
Gopal, Special Secretary, Department of
Social Welfare Government of U.P
Lucknow, in which it is stated as follows:-

3. That, in exercise of powers
conferred by clause (1) of Article 341 of
the Constitution of India, the President
made the Constitution (Scheduled Castes)
Order, 1950, by which in State of Uttar
Pradesh 63 castes were declared to be
Scheduled Castes and in Bundelkhand
Division and the portion of Mirzapur
District south of Kaimur Range the 'Gond'
caste was also declared to be deemed to
be Scheduled Caste. True copy of the
Constitution (Scheduled Castes) Order,
1950, is being annexed herewith and
marked as ANNEXURE NO. 1 to this
affidavit.

4. That, thereafter, the Scheduled
Castes and Scheduled Tribes Order
(Amendment) Act, 1956 was enacted and
in the Scheduled I the list of Scheduled
Castes has been provided, in which 64
castes are shown to be Scheduled Caste
and throughout the State excluding Agra,
2 All] Swaroop Chand Singh Vs. State of U.P. & Ors.
753
Meerut and Rohilkhand Division 'Kori'
and in Bundelkhand Division and the
portion of Mirzapur District sought of
Kaimur Range 'Gond' caste has been
declared as Scheduled Caste. True copy
of the Scheduled Castes and Scheduled
Tribes (Amendment) Act, 1956, is being
annexed
herewith
and
marked
as
ANNEXURE NO. 2 to this affidavit.

5. That, thereafter, the Scheduled
Castes
and
Scheduled
Tribes
Lists
(Modification) Order, 1956 was made by
the President in pursuance of Section 41
of the State Reorganization Act, 1956 (37
of 1956), and Section 14 of the Bihar and
West Bengal (Transfer of Territories) Act,
1956 (40 of 1956), by which the
Constitution (Scheduled Castes) Order,
1950 has been modified in the manner
and to the extent specified in Schedule I.
True copy of the Scheduled Castes and
Scheduled Tribes Lists (Modification)
Order, 1956, is been annexed herewith
and marked as ANNEXURE NO. 3 to this
affidavit.

6. That, copies of the Government
Orders, which provide the procedure for
issuing caste certificate prior to issuance
of Government Order dated 27.11.2010,
are being collectively annexed herewith
and marked as ANNEXURE NO. 4 to this
affidavit.

7. That, from the perusal of the
Circular dated 22.05.1957 it is clear that
the List of Scheduled Castes and
circulated alongwith the government
Order dated 12.09.1950 and reproduced
as Appendix 'A' to the Circular dated
22.05.1957, is now no more in force. As
such, the argument of the counsel for the
petitioner that there are 26 sub-castes of
caste 'Shilpkar', has no force. The clear
and legible copy of the Circular dated
22.05.1957 is being annexed herewith and
marked as ANNEXURE NO. 5 to this
affidavit.

8. That, the Lucknow Bench of this
Hon'ble Court in the case of Ghanshyam
Das Vs. Union of India and others held
that at no point of time the 'Kasera'
community was included in the list of
Scheduled Castes of U.P. True copy of
the order dated 09.12.2004 of the
Lucknow Bench of this Hon'ble Court in
the case of Ghanshyam Das Vs. Union of
India and others, is being annexed
herewith and marked as ANNEXURE
NO. 6 to this affidavit.

9. That, in view of the facts and
circumstances stated herein above, it is
respectfully submitted that the present
affidavit may kindly be taken on record."

14. Sri Ramesh Upadhyay submits
that in the Constitution (Scheduled Caste)
Order 1950, 63 Castes were declared as
Scheduled Caste in the State of U.P., and
in Bundelkhand Division, and the portion
of Mirzapur district south of Kaimur
Range 'Gond' was also declared to be
Scheduled Caste in the State of U.P.
Thereafter
Scheduled
Castes
and
Scheduled Tribes Orders (Amendment)
Act 1956 (Act No. 63 of 1956) was
enacted . In schedule-I, Part-VIII, a list of
Scheduled Castes was notified, and in
which 64 castes were shown. The 'Kori'
caste was also declared Scheduled Caste
through out the State excluding Agra,
Meerut and Bundelkhand divisions and
'Gond' caste was declared as Scheduled
Caste in Bundelkhand division and the
portion of Mirzapur district south of
Kaimur Range. Thereafter, Scheduled
Castes
and
Scheduled
Tribes
Lists
754 INDIAN LAW REPORTS ALLAHABAD SERIES
(Modification) Order 1956, was made by the
President under Article 341 (1) of the
Constitution of India in pursuance of Section
41 of the States Reorganization Act 1956, and
Section 14 of the Bihar and West Bengal
(Transfer of Territories) Act 1956 by which
Constitution (Scheduled Caste) Order 1950
was modified and to the extent specified in
Schedule-I. He submits that in the circular
dated 22.05.1957, issued in pursuance to
Modification Order 1956, it is clear that
Appendix-A to the circular, which was
included
and
circulated
along
with
Government Order dated 12.09.1950, is no
more in force. Thus, the 26 sub casts of
'Shilpkar' are no more notified as sub caste to
be included as Scheduled Caste since
22.05.1957.

15. Sri Ramesh Upadhyay further
submits that the question whether 'Kasera'
caste is to be included within the caste of
'Shilpkar' was decided by a Division Bench
of the Court at Lucknow Bench in
Ghanshyam Das vs. Union of India and
others decided on 9.12.2004 [2005 (2) AWC
1848]. In this case a claim was made that
'Kasera' is a sub caste of 'Shilpkar. A caste
certificate, showing the petitioner as 'Kasera'
caste and belonging to Scheduled Caste was
issued to him on 6.12.1996. A complaint was
made against the said certificate. The
Tehsildar after making enquiries, cancelled
the caste certificate vide order dated
31.3.1999. The writ petition filed against the
cancellation order was dismissed by the
Lucknow Bench of the Court relying on
paragraph 7 and 9 of the counter affidavit.
Paras 8 and 9 of the judgment of the
Lucknow Bench in Ghanshyam Das case
(Supra) is quoted as under:-

"8. In paragraphs 7 and 9 of the
counter-affidavit filed by the Union of
India is as under :

(7) "That in reply to the contents of
paras 8 to 10 of the writ petition, it may
be pointed out that the list of Scheduled
Castes of Uttar Pradesh is contained in
Part XVIII of the Schedule to the
Constitution (Scheduled Castes) Order,
1950, as amended up to date. The
community "Shilpkar" has been specified
as Scheduled Castes at serial No. 65 in
relation to the State of Uttar Pradesh. That
the Kasera Community does not find
place in the said order. It may be stated
that Article 341 of the Constitution
prescribes procedure for specification of
community as Scheduled Castes. Clause
(1) envisage that first specification of
Scheduled Castes in relation to a
particular State is by a notified Order of
the President, after consultation with the
State
Government
concerned.
Under
Clause (2) the notification once issued in
exercise of powers contained in Clause
(1) can be modified subsequently only
through an Act of Parliament. At no point
of time the Kasera Community was
scheduled as S. C. in relation to the State
of Uttar Pradesh. Thus, Annexure-5 stated
to have been issued by the Government of
Uttar Pradesh is not legally tenable. The
State
Government
may
merely
recommend and it cannot include in or
exclude from the list of Scheduled Castes
any community.

(9) That the contents of paras 18 and
19 of the writ petition are not admitted as
framed. It may be pointed out that the
State Government of Uttar Pradesh have
no power to amend the S. C. list of that
State contained in Part XVIII of the
Schedule to the Constitution (Scheduled
Castes) Order, 1950. It is also submitted
that at no point of time the community
Kasera was included in the S. C. list of
Uttar Pradesh. The order stated to have
2 All] Swaroop Chand Singh Vs. State of U.P. & Ors.
755
been issued by the Government of Uttar
Pradesh in the year 1957 is not legally
tenable. The Government of U. P. vide U.
P. Act No. 4 of 1994 has neither added
nor excluded from the lists of Scheduled
Castes any community. The Government
of Uttar Pradesh is within its power to
notify any community other than S.Cs.
and S.Ts. as other Backward Class."

9. From the record, it reveals that at
no point of time the Kasera community
was included in the list of Scheduled
Castes of U. P. The petitioner who
belongs to Kasera community cannot be
said to be Scheduled Castes. There is no
illegality in the impugned order. The writ
petition is devoid of merits. It is
accordingly dismissed."

16. Sri Ramesh Upadhyay submits
that Vijay Shankar's case (Supra), the
attention of the Division Bench was not
drawn to the earlier Division Bench
judgment of the Court dated 9.12.2004, in
Ghanshyam Das case (Supra). The
conclusion drawn in Vijay Shankar's case
is contrary to the judgment of the same
Court in Ghanshyam Das case (Supra).

17. The Constitutional scheme
specifies the castes, races or tribes or parts
of or groups within castes races or tribe
which shall for the purpose thereof be
deemed to be Scheduled Castes. Article
341 of the Constitution provides as
follows:-

"Art. 341 (1). The President may
with respect to any State or with the
Governor thereof by public notification,
specify the castes, races or tribes or parts
of or groups within castes races or tribe
which shall for the purpose thereof 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."

18. The object of Article 341 is to
provide additional protection to the
members of the Scheduled castes having
regard to the social and educational
backwardness from which they have been
suffering since a considerable length of
time and to keep away disputes touching
whether a caste is a Scheduled Caste or
not for the purpose of the Constitution.

19. In State of Maharashtra Vs.
Milind (Supra), it was held that the object
of Articles 341, 342, 15 (4) and 16 (4-A)
is to provide preferential treatment for the
Scheduled Castes and Schedule Tribes
having regard to the economic and
educational
backwardness
and
other
disabilities wherefrom they suffer.

20. A list of Scheduled Caste was
initially notified in the Constitution
(Scheduled Castes) Order 1950, which
was amended by Scheduled Castes and
Scheduled Tribes Orders (Amendment)
Act
1956,
as
a
result
of
State
Reorganization Act 1956. No one can
claim that his caste should be included as
Scheduled Caste unless the claim is
examined and with the recommendation
of the Governor of the State, such caste is
included in the list by an order made by
President and after he has made an order
by
a
Parliamentary
enactment.
In
756 INDIAN LAW REPORTS ALLAHABAD SERIES
including any caste in Presidential Order,
the President is authorised to limit the
notification to parts or groups within the
caste depending on the educational and
social backwardness.

21. In Bhaiyalal Vs. Harkishan
Singh [AIR 1965 SC 1557] a constitution
bench of the Supreme court held that the
object of clause (1) of Article 341 is to
avoid all disputes as to whether a caste is
a scheduled Caste or not, for the purposes
of the Constitution. The Scheduled Castes
Order 1950 has been promulgated by the
President under Article 341. In order to
determine whether a particular caste is a
Scheduled Caste within the meaning of
Article 341, one has to look into the terms
of the Order. Hon'ble P.B. Gajendra
Gadkar, Chief Justice of India, speaking
for the bench, held in paras 9 and 10 as
follows:-

"9. Whilst we are referring to this
aspect of the matter, we may point out
that the Order has taken good care to
specify different castes under the same
heading where enquiry showed that the
same caste bore different names, or it had
sub- castes which were entitled to be
treated as scheduled castes for the
purposes of the Order. In the district of
Datia, for instance, entry 3 refers to
Chamar,
Ahirwar,
Chamar
Mangan,
Mochi or Raidas. Similarly, in respect of
Maharashtra, Item 1, entries 3 and 4 refer
to the same castes by different names
which shows either that the said castes are
known differently or consist of different
sub- castes. Likewise, item 2, entry 4 in
the said list refers to Chamar, Chamari,
Mochi,
Nona,
Rohidas,
Ramnami,
Satnami, Surjyabanshi or Surjyaramnami.
It is also remarkable that in Maharashtra
in certain districts Chambhar and Dhor
are included in the list separately.
Therefore, we do not think that Mr.
Chatterjee can seriously quarrel with the
conclusion of the High Court that the
appellant has not shown that he belongs to
the Chamar caste which has been shown
in the Order as a scheduled caste in
respect of the Constituency in question.

10. Mr. Chattejee attempted to argue
that it was not competent to the President
to specify the lists of Scheduled Castes by
reference to different districts or sub-areas
of the States. His argument was that what
the President can do under Art. 341(1) is
to specify the castes, races or tribes or
parts thereof, but that must be done in
relation to the entire State or the Union
territory, as the case may be. In other
words, says Mr. Chatterjee, the President
cannot divide the State into different
districts or subareas and specify the
castes, races or tribes for the purpose of
Art. 341(1). In our opinion, there is no
substance in this argument. The object of
Art.
341(1)
plainly
is
to
provide
additional protection to the members of
the Scheduled Castes having regard to the
economic and educational backwardness
from which they suffer. It is obvious that
in specifying castes, races or tribes, the
President has been expressly authorised to
limit the notification to parts of or groups
within the castes, races or tribes, and that
must mean that after examining the
educational and social backwardness of a
caste, race or tribe, the President may well
come to the conclusion that not the whole
caste, race or tribe but parts of or groups
within
them
should
be
specified.
Similarly, the President can specify
castes, races or tribes or parts thereof in
relation not only to the entire State, but in
relation to parts of the State where he is
satisfied that the examination of the social
2 All] Swaroop Chand Singh Vs. State of U.P. & Ors.
757
and education are backwardness of the
race,
caste
or
tribe
justifies
such
specification. In fact, it is well-known that
before a notification is issued under Art.
341(1), an elaborate enquiry is made and
it is as a result of this enquiry that social
justice is sought to be done to the castes,
races or tribes as may appear to be
necessary, and in doing justice, it would
obviously be expedient not only to specify
parts or groups of castes, races or tribes,
but to make the said specification by
reference to different areas in the State.
Educational and social backwardness in
regard to these castes, races or tribes may
not be uniform or of the same intensity in
the whole of the State; it may vary in
degree or in kind in different areas and
that may justify the division of the State
into convenient and suitable areas for the
purpose of issuing the public notification
in question. Therefore, Mr. Chatterjee is
in error when he contends that the
notification issued by the President by
reference to the different areas is outside
his authority under Art. 341 (1)."

22. In A. Chinnappa Vs. V.
Venkatamuni [(1996) 3 SCC 585], it was
held by the Supreme Court that once the
Parliament by law includes in or excludes
from any race, caste, tribe, parts of or
groups within any caste, race or tribe, the
President thereafter shall have no power
to vary it by any subsequent notification.
In Nityanand Sharma Vs. State of Bihar
[1996 (3) SCC 585]; S. Swvigaradoss Vs.
Zonal Manager [(1996) 3 SCC 100];
Prabhudev
Mallkarjunaiah
Vs.
Ramchandra Veerappa [(1996) 4 SCC
431]; Pankaj Kumar Saha Vs. SubDivisional Officer, Islampur [(1996) 8
SCC 264]; Vinay Prakash Vs. State of
Bihar [(1997) 3 SCC 406] and State of
Maharashtra Vs. Milind (Supra), the
Supreme Court held that the Court is also
devoid of power to include in, or exclude,
or substitute, or declare synonyms to be of
a scheduled caste or scheduled tribe or
parts thereof or group of such caste or
tribe. The Courts have no power to go
behind the order, or to hold any inquiry or
to let in any evidence to determine
whether or not any particular community
falls within the Order or not. The States
have no power to amend Presidential
Orders. In Shree Surat Valsad Jilla
K.M.G. Parishad Vs. Union of India
[(2007) 5 SCC 360], the Supreme Court
held that the list prepared by the President
under Article 341 (1) forms one class of
homogeneous group. Only one list is to be
prepared by the President and, if any
amendment thereto is to be made, the
same is to be done by Parliament. Even
the State does not have any legislative
competence to alter the same.

23. It is not open to anybody to seek
any modification of the Order by
producing any evidence to show that
though caste A is mentioned in the Order,
caste B was also a part of Caste A, and as
such was deemed to be a Scheduled
Caste. In State of Maharashtra Vs. Milind
(Supra), it was held that the Presidential
Order made under Article 341 (1) can be
amended only by the legislation by
Parliament, and not even by subsequent
notification
by
the
President.
Such
amendment cannot be made by the court
even indirectly.

24. The aforesaid discussion, clearly
establishes
that
the
sub
castes
of
'Shilpkar', as notified in Note 4 in
Annexure-A
to
the
Constitution
(Scheduled Castes) Order 1950, was
replaced
by
Scheduled
Castes
and
Scheduled Tribes Orders (Amendment)
758 INDIAN LAW REPORTS ALLAHABAD SERIES
Act
1956,
consequent
upon
States
Reorganization Act 1956, thereafter by
Scheduled Castes and thereafter by
Scheduled Tribes Lists (Modification)
Order 1956, and accordingly the list of
Scheduled
Castes
circulated
in
Government Order dated 12.09.1950, and
reproduced
as
Appendix-A
to
the
Government Order dated 22.05.1957, is
now no more in force. The petitioner
cannot rely upon Note appended to
Annexure-A to the Government Order
dated 12.09.1950, to submit that 26 sub
castes are included with the caste of
'Shilpkar', and can claim the benefit of
Scheduled Case for any purpose including
contesting in election, admission in
educational institution, for appointment
on any posts etc.

25. In view of the aforesaid
discussions, we do not find any force in
the argument of Sri Ravi Kant that
'Shilpkar'
is
a
generic
name
of
community, and that 26 sub castes, which
are universally known as depressed class
in the census report of 1931, are to be
included in the caste of 'Shilpkar'. It is not
open for the Court to take any evidentiary
value on the report, and to hold that the
'Kasera' is a sub caste of 'Shilpkar', which
was so notified for the State in the
Presidential Order, or subsequently by a
Parliamentary enactment, or by Scheduled
Tribes Lists (Modification) Order 1956.

26. On the aforesaid findings, we
decide the Question No.1 to the effect that
'Kasera' is not a sub caste of 'Shilpkar'.
The persons belonging to 'Kasera' or any
other sub caste, which were included in
Note 4 of Appendix-A of Part-VIII of the
list of the Constitution (Scheduled Castes)
Order 1950 are not entitled to get
certificates to belong to the Scheduled
Caste.

27. So far as question No. 2 is
concerned, in State Vs. Vijay Shankar and
another (Supra) [Writ Petition No. 2080 of
2011 decided on 23.12.2011], a Division
Bench of the Court sitting at Lucknow Bench
held that no specific query was made from
the Tehsildar, Mirzapur, who has issued the
caste certificate, and that it was not
mandatory to make an entry for issuing every
certificate. The Tribunal has examined the
National Citizen Register, wherein it was
shown that opposite party's parents were
categorized as 'Shilpkar', which admittedly
belongs to scheduled caste; the Tribunal also
observed that 'Kasera' is a sub caste of
'Shilpkar' as per Government Order dated
12.12.1950, and that Kasera being a sub
caste of 'Shilpkar, comes under the category
of scheduled caste.

28. We may observe here that the
Collector, vide letter dated 14.12.2005, after
making
enquiries,
informed
that
no
certificate was issued during the year 198385 pertaining to the 'Kasera' caste being a
scheduled caste. The scheduled caste
certificate was issued to Vijay Shankar, to
belong to the caste of 'Shilpkar' by the
Tehsildar on 2.2.1987, whereas he was
recorded as 'Kasera' in the school certificate.
The Division Bench further observed that no
specific query was made from the Tehsildar,
Mirzapur, who has issued the said certificate
to Sri Vijay Shankar. Since we have held
after tracing the legislative background under
Article 341 (1) and (2) of the Constitution of
India that 'Kasera' is not a sub caste of
Shilpkar, we need not go into the question
nor any further discussion is required.

29. The observation of the Division
Bench that it was not mandatory for the
2 All] Dileep Kumar Singh Vs. Union of India & Ors.
759
Tehsildar to make an entry for issuing every
certificate is not borne out from the procedure
prescribed for issuing such certificate. Sri
Ramesh Upadhyay submits that there was no
need to issue any specific Government Order,
providing that record should be kept for
issuing certificate inasmuch as "System of
Record, Files and Registers Relating to
Correspondence" in the U.P. Revenue Manual
provides for maintenance of records for every
document issued by Revenue Officer in the
State of U.P. As the Tehsildar has been
authorised to issue caste certificate, he is
required to maintain the records of every file
in accordance with Rules 54 to 59 of Chapter
III of U.P. Revenue Manual. All enquiries
with regard to issuance of caste certificate can
be made from the records maintained by the
concerned Tehsildar. He further submits that
the Government is now trying to simplify the
procedure of issuing caste certificate, income
certificate and residence certificate through elegalix system from the Common Service
Centre (Jan Sevak Kendra). The applicants
under
the
Government
Order
dated
27.11.2010, are to be provided a prescribed
format at the Common Service Centre. The
Centre operator will fill up the details in the eform. A print out of entries made in the e-form
will be given to the applicant, on which the
applicant may sign which will be scanned and
a print out of the same with unique number
will be given to him as acknowledgement
receipt. The Tehsildar will examine the eform, and will make necessary enquiries
through concerned Lekhpal and Revenue
Inspector with regard to his/her caste, by
making physical inspection of which reports
will be prepared and sent to the Tehsildar
within one week. After the Tehsildar is
satisfied with the enquiry, with regard to caste
of the person, the authorized representative or
CCS will issue the caste certificate to the
concerned person. It can also be examined at
any time from the data stored in the computer.
Sri Upadhyay submits that now a fair,
transparent and simplified procedure has been
evolved, which will not cast any doubt, and
will be open to any enquiry in future for its
verification.

30. On the aforesaid discussion, we
also answer the question No.2 in negative,
and hold that the judgment dated
23.12.2011, rendered by the Lucknow
Bench of the Court in State of Vs. Vijay
Shankar and another - Writ Petition
(Service Bench) No. 2080 of 2011, is not
correct in law.

31. In view of the aforesaid findings
and answers given to the questions
referred to us, we do not propose to send
the matter back to the Division Bench, as
we do not find that any relief can be
granted to the petitioner for issuing caste
certificate to his son, to belong to
Scheduled Caste on the basis of judgment
in State of U.P. Vs. Vijay Shankar and
another (Supra).

32. The writ petition stands
dismissed with no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 42101 of 2011
alongwith 30278 of 2004