Allowed

Km. Lalita Kashyap v. Special Secretary Department of Basic Education and Others

Allahabad HC12 Dec 2019SPLAD/1089/2009

Case brief

AI extract

What is this about?

The Special Appeal was allowed after condoning filing delay. The Court held that 'Mallah' caste is not a Scheduled Tribe as per Articles 341 and 342, rejecting the claim based on State notifications. The writ petition challenging admission to BTC Course was dismissed. Respondents directed to return educational certificates.

What did the court decide?

Delay in filing special appeal condoned and appeal allowed. Impugned order in Civil Writ Petition dismissed. Liberty granted to file representation for return of educational certificates within three

Km. Lalita Kashyap Vs Special Secretary… — Pension and Retirement Benefits | Allahabad HC (2019)

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(1)

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Court No. - 4

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In Re : Criminal Misc. Delay Condonation Application No. 272912 of 2009. Case :- SPECIAL APPEAL DEFECTIVE No. - 1089 of 2009 Appellant :- Km. Lalita Kashyap Respondent :- Special Secretary Department Of Basic Education And Others

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Counsel for Appellant :- L.D. Rajbhar,Antriksh Verma,Naresh Chandra Nishad

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Counsel for Respondent :- C.S.C.,Ghan Shyam Maurya

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Hon'ble Bala Krishna Narayana,J. Hon'ble Shamim Ahmed,J.

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Heard learned counsel for the applicant.

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This application has been moved on behalf of the applicant with the prayer to condone the delay in filing the appeal before this Court.

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The delay condonation application is supported by the affidavit of L.D. Rajbhar who has described himself as counsel for the applicant.

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We have perused the delay condonation application as well as the affidavit filed in support thereof.

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Cause shown for delay in filing the appeal appears to be sufficient.

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Accordingly the delay in filing the appeal is condoned.

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The delay condonation application is allowed.

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Order Date :- 12.12.2019 SA

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(2)

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Court No. - 4

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Case :- SPECIAL APPEAL DEFECTIVE No. - 1089 of 2009

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Appellant :- Km. Lalita Kashyap Respondent :- Special Secretary Department Of Basic Education And Others Counsel for Appellant :- L.D. Rajbhar,Antriksh Verma,Naresh Chandra Nishad

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Counsel for Respondent :- C.S.C.,Ghan Shyam Maurya

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Hon'ble Bala Krishna Narayana,J. Hon'ble Shamim Ahmed,J.

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(1) Heard learned counsel for the appellant and learned standing counsel for the State.

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(2) This special appeal has been preferred by the appellant challenging the order dated 10.08.2009 passed by Learned Single Judge in Civil Misc. Writ Petition No. 40816 of 2009 which runs as here under :

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Petitioner is Mallah by caste. He relied upon a Government Order which has declared the caste of Mallah to be included within the Vimukt Jati and on that strength he claims a right to be admitted to BTC Course within the category of Scheduled Tribe.

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I am of the considered opinion that the case set up by the petitioner is patently misconceived.

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The Court may reiterate the law laid down by the Apex Court and this Court with reference to the constitutional provisions, which regulate the grant of Scheduled Caste and Scheduled Tribes status to a particular caste i.e. Articles 341 & 342, which are identical in nature except that first provides for Scheduled Caste and other for Scheduled Tribes, and read as follows :-

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Scheduled Castes. - (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 castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.]

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(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

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(3)

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any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

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Scheduled Tribes – (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 parts 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.]

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(2) Parliament may by 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.

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From the simple reading of the aforesaid statutory provision it is crystal clear that the first list of Scheduled Caste/Scheduled Tribe, to be treated as such, in relation to a State or the Union Territory is to be notified by the President of India. Any amendment in such list notified either by inclusion or exclusion can be affected only through an Act of Parliament. The scope of Articles 341 & 342 of the Constitution of India has been considered by the Hon'ble Supreme Court of India in its judgement reported in 2004 (9) SCC 481, Sudhakar Vithal Kumbhare Vs. State of Maharashtra & others and 2003 (7) SCC 657, U.P. Public Service Commission, Allahabad Vs. Sanjay Kumar Singh. It has been explained that first list has to be published by the President of India and thereafter any amendment in such list can be made by the Act of Parliament only. The Supreme Court has held that the State Government cannot add or substitute any caste to the list notified nor any caste can be declared as sub caste of a notified caste for the purposes of being treated as the Scheduled Caste or Scheduled Tribe. The Apex Court has gone to the extent of holding that even the High Court of the State cannot do so.

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In view of the aforesaid settled legal position, mere issuance of the notification dated 21^st November, 1992, by the State Government declaring 'Mallah' to be included in 'Vimkuti Jaati' of district Gorakhpur will not in any way lead to the conclusion that the Caste Mallah is to be treated as Scheduled Tribe within the provisions of Article 342 of the Constitution of India. In view of the aforesaid, this court has no hesitation to record that the caste 'Mallah' is not within the notified list of Scheduled Tribes. After arriving at the said conclusion this

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(4)

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Court holds that the petitioner does not belong to Scheduled Tribes nor any benefit can be offered by way of reservation in her favour as such. Any order of the State Government to the contrary would virtually negate the provisions of Articles 341 & 342 of the Constitution of India.

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So far as the judgements relied upon by the learned counsel for the petitioner are concerned, this Court may at the outset record that the law laid down by the Hon'ble Supreme Court in the aforesaid judgement vis-a-vis Article 342 of the Constitution of India has not been examined. So far as the first judgement is concerned, the Court has specifically recorded that “Bhar' was within scheduled tribes, as per the judgement of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Milind & Others, JT 2000 (Suppl.3) SC 213. Moreover, the position qua the caste 'Bhar' has been subsequently explained by this Court vide its judgement and order dated 23.12.2004 passed in Civil Misc. Writ Petition No. 42348 of 2004, Vijay Prakash Vs. State of U.P. & others along with connected petitions, which has been affirmed by the Division Bench of this court vide judgement and order dated 04.02.2005 passed in Special Appeal No. 89 of 2005, Vijay Prakash Vs. State of U.P. & others. So far as the second judgement is concerned, this Court has no hesitation to state that the said judgement was delivered without examining the Articles 341 & 342 of the Constitution and the law applicable. The Hon'ble Supreme Court in the case of Bhavnagar University Vs. Palitana Sugar Mills (Pvt.) Ltd. & Ors., reported in 2003 (2) SCC 111 , has held as follows :

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“It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.”

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The said judgement has been followed in the recent judgement of the Hon'ble Supreme Court in the case of Dr. Rajbir Singh Dalal Vs. Chaudhari Devi Lal University, Sirsa & Anr., reported in AIR 2008 SCW 5817 .

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The writ petition is dismissed.

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At this stage, counsel for the petitioner contended that 'Mallah' has been declared as O.B.C. in U.P. and therefore, her application be considered under the said category. In case, the petitioner belongs to the O.B.C. Category, she may make a fresh representation within two weeks from today before respondent no. 2, which shall be considered and decided within four weeks thereafter.

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(3) After having gone through the impugned order and the other material

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(5)

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brought on record, we do not find that the order impugned suffers from any illegality or infirmity requiring any interference by this Court. The Learned Single Judge upon a meticulous scrutiny of the facts and exhaustive consideration of the law and also considering the submissions made by the learned counsel for the petitioner before him came to the conclusion that the petitioner was Mallah by caste which had been declared as O.B.C. in U.P. and therefore, her application could be considered under the said category.

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(4) The impugned order is based upon relevant considerations and supported by cogent reasons requiring no interference by us. At this stage, learned counsel for the appellant has submitted that all the educational certificates of the petitioner are lying with the respondent no. 3 and a direction be issued to him to return the same to the petitioner. The aforesaid prayer made by the learned counsel for the appellant appears to us to be innocuous to which learned standing counsel has no objection.

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(5) Without interfering with the impugned order, we dispose of this appeal with liberty to the appellant to file a representation along with certified copy of this order before the respondent no. 3 with a prayer to return her educational certificates. In case, any such representation is filed by the appellant before the respondent no. 3, he shall consider and decide the same strictly in accordance with law by a speaking and reasoned order as expeditiously as possible preferably within a period of three weeks from the date of filing of such representation before him.

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Order Date :- 12.12.2019 SA

Km. Lalita Kashyap v. Special Secretary Department of Basic Education and Others

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Km. Lalita Kashyap v. Special Secretary Department of Basic Education and Others

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