Judgment:
ORDER
Sanjay Yadav, J.
1. Since common issue is involved in both the writ petitions, they were heard analogously and are decided by this common order. The issue common in both the petitions is whether the petitioners who are sisters and are Dhobi by Caste, resident of Sehore, and Schedule Caste and whether the action of the respondents in not recognising them as such and denying a Schedule Caste certificate are justified in their action.
2. Dhobi belonging in Bhopal, Raisen and Sehore Districts of Madhya Pradesh as per Entry 22 of the Constitution (Scheduled Castes) Order, 1950 is a Schedule Caste. The Dhobis, therefore, of other places cannot claim themselves to be of Scheduled Castes. And whether when migrated can they claim such right is the relevant issue involved.
3. In the case at hand the petitioner in W.P. No. 15108/2007 having born and brought up at Sehore applied for and got a temporary/provisional Caste Certificate. (In W.P. No. 3229/2004, the petitioner is denied such certificate). Thereafter, she applied for and got admission in College of Agriculture Engineering Jawaharlal Nehru Kendra Vishwa Vidyalaya as a Scheduled Caste Candidate. Subsequent to her admission, the college authorities demanded a permanent caste certificate. The petitioner apprehending an adverse action filed a writ petition W.P. No. 8441/2006, which was disposed of by order dated 30-8-2007 with a direction to Sub Divisional Officer, Sehore, to issue caste certificate permissible under law and an interim protection was granted that till such decision is taken no adverse action be taken against the petitioner.
4. Consequent upon the order passed in W.P. No. 8441/2006, a Case No. 147/B-121/2007 was registered and the enquiry was conducted through Revenue Officers and by order dated 11-10-2007, he rejected the claim of the petitioner for the reason that father of the petitioner is originally a resident of District Betul and is living at Sehore since 1961, therefore, the petitioner though born at Sehore was not treated to be a Scheduled Caste and accordingly her claim was rejected.
5. The learned Counsel for the petitioner while not disputing the fact that the petitioners lather settled at Sehorc in 1961, the grandmother of the petitioner resided at Sehore in 1940 and thereafter at Betul since 1942 and again came to stay at Sehore permanently since 1961, contends that being an ordinary resident of District Sehore she has right to be treated as a Scheduled Caste, being a Dhobi and covered by Entry 22 of the Constitution (Scheduled Castes) Order, 1950. Reliance is placed on the Clause 2 of the Presidential Order, 1950, which stipulates 'subject to the provisions of the Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in (parts to XXII) of the Schedule to the order shall, in relation to the State to which those parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those parts of that schedule'. The petitioner also rely upon the observation of this Court in E.P. No. 15/1994, Beniprasad Jaroliya v. Narbada Prasad; wherein Paragraph 16, His Lordship was pleased to observe:
Since residence is only the criteria for deemed to be a Scheduled Caste of that area then in that respect, the respondent shall be deemed to be a Scheduled Caste of that area as he got his residence change to localities specified in that order.
6. The observation was in the context that the respondent contested the election from Gotegaon as Scheduled Caste. The election was challenged on the count that his forefather belonged to District Shahdol and are 'Kumhar' by caste. The matter thereafter travelled to the Supreme Court, wherein Beniprasad and Anr. v. Narbada Prasad : (1997) 9 SCC 631, while upholding the judgment of this Court, Their Lordships were pleased to observe:
2. ...The fact that he was a 'Kumhar' was not in question and as stated earlier that question was concluded in favour of the respondent. If he was a 'Kumhar' in the Narsinghpur area the only question was whether he could get the benefit of belonging to the 'Kumhar' community in Shahdole area also. It was not contended that he did not satisfy the requirements of being recognised as a 'Kumhar' in the Shahdole District but what was contended was that he should have been a 'Kumhar' in Shahdole District in 1950 when the Presidential Notification was issued. That contention does not appear to be correct because in that case those who are born after the Presidential Notification would he rendered ineligible for being considered as belonging to the Scheduled Castes.
(Emphasis supplied)
7. Foreshadowing his arguments on the bedrock of above proposition, it is urged that since the petitioner's father got permanently settled at Sehore and petitioner having taken birth at Sehore cannot but have to be treated as a resident of Sehore and not that of Betul. Therefore, it is urged, the denial of Scheduled Caste Certificate to the petitioner is illegal and arbitrary and vexatious.
8. The question, therefore, which arises for consideration is whether the petitioner whose lather has migrated from District Betul can claim the benefit of the caste of the place where he is later on settled down. In other words, being the resident of Betul and having settled at Sehore whether petitioner can claim to be a Scheduled Caste, because the Dhobis of Sehore are recognised as such.
9. In Ku. Madhuri Paid and Anr. v. Additional Commissioner Tribal Department and Anr. : AIR 1995 SC 94, the issuance of a social status certificate, their scrutiny and their approval certain guidelines were laid down.
10. In Stale of Maharashtra v. Milind (2001) 1 SCC 4, the Constitutional Bench of the Supreme Court held:
36. In the light of what is staled above, the following positions emerges:
1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950.
2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.
3. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by Parliament by law and by no other authority.
4. It is not open to State Governments or Courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.
5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar and Dina v. Narain in Singh did not lay down law correctly in stating that the inquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no inquiry at all is permissible and no evidence can be let in, in the matter.
11. The Union of India v. Dudh Nath Prasad AIR 2000 SC 525, was a case, where the respondent obtained certificate in accordance with the 'instructions to the candidates' issued by the Union Public Service Commission requiring that a candidate who claims to belong to the Scheduled Castes and Scheduled Tribes should submit in support of his claim a certificate...(from the Competent Authority).... Of the district in which his parents (or surviving parent) ordinarily reside... 'The caste to which respondent belonged, i.e., 'Nuniya' was recognised as SC in the Stale of West Bengal from which he obtained certificate but not in State of Bihar in which he got education. The Apex Court while dealing with the issue as to whether the Scheduled Caste certificate produced by the respondent could be accepted as valid for the purpose of appointment to a Central Government Service, held:
26. We have already explained the meanings of the words 'ordinarily resident' and have found that notwithstanding that the warrants or the respondent lived at one time in a village in District Siwan in the State of Bihar and that they owned some property also there, they had shifted to the State of West Bengal long ago and had been living there since then. For all intents and purposes, therefore, they be treated to be 'ordinarily residing in the State of West Bengal'. For the State of West Bengal, the President in exercise of his powers under Article 341(1) read with Article 366(24) had already declared 'Nuniya' Caste as a Scheduled Caste and, therefore, the respondent was rightly treated to be a Scheduled Caste candidate and was rightly appointed against a Reserved Vacancy, after being declared successful at the examination held by the UPSC for the Indian Administrative & Allied Services in 1966.
12. In the case at hand admittedly father of petitioner settled down at Sehore in the year 1961, i.e., much after the issuance of the Constitution (Scheduled Castes) Order, 1950 and if the observations of Their Lordships of the Apex Court in Beniprnsad (supra), is taken into consideration, Le., 'those who are born after the Presidential Notification would be rendered ineligible for being considered as belonging to the Scheduled Castes', would, disentitle the petitioner of any of any benefit which enure from Clause (2) of the Presidential Order, 1950, because the expression 'thereof resident in the localities' has a nexus with the person actually residing at a place on the date, when the Presidential Order, 1950 comes into existence but that is not so in the case at hand. At the time when the Presidential Order, 1950 came into existence, the petitioner's father was not an ordinary resident of Sehore but was residing at Betul. Therefore, the conclusion arrived at by the authorities concerned and rejection of application for caste certificate cannot be found fault with.
13. In the result, petitions fail and are hereby dismissed. However, no costs.