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2010 Supreme(All) 460
HIGH COURT OF ALLAHABAD
C.K. Prasad, C.J. and Arun Tandon, J.
STATE OF U P
Versus
SHIV KUMAR BHARDWAJ
Decided On : 04 February 2010
Special Appeal (Defective) No. 788 of 2004 with S. A. Nos. 1313, 1314 of 2004
Act Referred
Headnote
SCHEDULED TRIBES - Admission to B.T.C. Course - 2001 - ARTICLE 366(25), ARTICLE 342 - [ARTICLE 366(25), ARTICLE 342(1)] - The court discussed the definition of Scheduled Tribes under Article 366(25) and the power of the President to specify the tribes to be Scheduled Tribes in relation to a State under Article 342(1). The court emphasized that only the Parliament has the power to include or exclude tribes from the list of Scheduled Tribes specified in the Presidential Order, and no other authority, including the State Government, can do so. The court cited previous decisions to support its interpretation of the constitutional provisions and concluded that the State Government does not possess the power to declare a particular tribe as a Scheduled Tribe.
Fact of the Case:
The respondents were candidates for admission to B.T.C. Course - 2001 and claimed to belong to a tribe entitled for admission to the course as Scheduled Tribe candidates. The State Government directed the appellants to consider the candidature of the respondents as Scheduled Tribe candidates, which was challenged by the respondents-appellants.
Finding of the Court:
The court found that the State Government does not possess the power to declare a particular tribe as a Scheduled Tribe, and therefore, the order of the learned Single Judge directing the appellants to consider the candidature of the respondents as Scheduled Tribe candidates was set aside.
Issues: The main issue was whether a tribe, not finding place in the Presidential Order or any law made by the Parliament, can be treated as a Scheduled Tribe by an Order of the State government.
Ratio Decidendi: The court held that only the Parliament has the power to include or exclude tribes from the list of Scheduled Tribes specified in the Presidential Order, and no other authority, including the State Government, can do so.
Final Decision: The appeals were allowed, and the impugned judgment directing the appellants to consider the candidature of the respondents as Scheduled Tribe candidates was set aside.
L.D.Rajbhar, M.S.PIPERSONIA,
( 2 ) SHORN of unnecessary details, facts giving rise to the present appeals are that the writ petitioner - respondents (hereinafter referred to as the respondents)were candidates for admission to B. T. C. Course - 2001. For welfare of Backward classes and for grant of concession to the most backward amongst the Backward classes, the State Government by Order dated 12th May, 1961 decided to issue list of De-notified and Vagrant Tribes. It has been observed in the said Order that though there are no Scheduled Tribes recognised as such in this Pradesh yet there are certain tribes residing in the State which deserve special attention in the same way as is available to Scheduled Tribes in other States. The notification itself included few tribes and it further provided that lists of De-notified and Vagrant tribes shall be issued separately. In the list of De-notified Tribes, the community bhar is amongst the De-notified Tribes within the districts of Azamgarh, Varanasi,faizabad, Jaunpur and Gorakhpur. Respondents averred that their community bhar finds place in the list of de-notified Tribes (Vimukt Jati) and, therefore, entitled for admission to the B. T. C. Course-2001 treating them as members of scheduled Tribes. The plea was accepted and the learned Single Judge directed the appellants herein to consider the candidature of the respondents treating them as Scheduled Tribe candidates belonging to Vimukt Jati for admission to the said B. T. C. Course to the seats reserved for Scheduled Tribe category.
( 3 ) RESPONDENTS-APPELLANTS, aggrieved by the aforesaid direction, have preferred these appeals.
( 4 ) MR. M. S. Pipersenia, Standing Counsel, appears for the appellants, whereas respondents are represented by Mr. L. D. Rajbhar.
( 5 ) ARTICLE 366 (25) of the Constitution of India defines the Scheduled Tribes. Same reads as follows :
"article 366. In this Constitution, unless the context otherwise requires, the following expression have the meanings hereby respectively assigned to them, that is to say - (1) XXXX (25) "scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution. "
( 6 ) ARTICLE 342 (1) of the Constitution of India, inter alia, confers power on the president to specify the tribes to be Scheduled Tribes in relation to a State. Article 342 reads as follows: article 342. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or part of or groups within tribes or tribal communities which shall for the purposes of this constitution be deemed to be Scheduled Tribes in relation to that State or union Territory, as the case may be. (2) Parliament may be law include in or exclude from the list of Scheduled tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
( 7 ) IN exercise of the power conferred under Article 342 (1) of Constitution, the president has notified the Constitution (Scheduled Tribes) Order, 1950. Article 342 (2) of the Constitution confers power on the Parliament by law to include or exclude from the list of Scheduled Tribes specified in the notification issued under clause (1) any tribe or tribal community or part thereof. The community Bhar does not find place either in the notification issued by the President under Article 342 (1) of the Constit
