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Reserved on: 26.02.2014

Delivered on: 29.05.2014

Case :- WRIT - C No. - 35775 of 2013

Petitioner :- Swaroop Chand Singh

Respondent :- State Of U.P. Thru Secy. And 2 Others

Counsel for Petitioner :- Saurabh Kumar,P.S. Gupta

Counsel for Respondent :- C.S.C.

Hon'ble Sunil Ambwani, J.

Hon'ble Devendra Pratap Singh, J.

Hon'ble Dr. Satish Chandra, J

(Judgement 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

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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. 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.

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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

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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. 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

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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

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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. 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

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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, 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

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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

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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 (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

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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 been issued by the Government of Uttar

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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

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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 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:-

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“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 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

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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. Sub-Divisional 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

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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)

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

16

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 1983-85 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

17

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 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 e-legalix

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 e-form. 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

e-form, and will make necessary enquiries through concerned

18

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.

Dt. 29.05.2014

nethra