R.B. Misra, J.
1. In the present writ petition preferred under Article 226/227 of the Constitution of India prayer has been made to quash the impugned order dated 6th January, 2000 passed in O.A. No. 1800 of 1999, whereby, the petitioner's claim for selection to the post of Himachal Pradesh Administrative Service as a scheduled tribe candidate was declined.
2. It appears that in reference to an advertisement of February, 1998 for selection of some posts under the Himachal Pradesh Administrative Services the petitioner applied as a scheduled tribe candidate on the strength of a certificate issued to him from district Bilaspur, and he was recommended by the Himachal Pradesh Public Service Commission for one of the posts, but when appointment letter was not issued, the petitioner preferred O.A. No. 1800 of 1999 before the learned H.P. State Administrative Tribunal.
3. In view of the directions of learned tribunal, Deputy Commissioner, Bilaspur was to inquire into the matter and to give a fact finding inquiry report about the correctness of the scheduled caste certificate issued in favour of the petitioner. The Deputy Commissioner, Bilaspur entrusted the inquiry to the Additional District Magistrate, Bilaspur, who conducted the fact finding inquiry in consonance to the provisions of law and submitted a fact finding report on 1.8.1999, whereby, the petitioner's certificate categorizing him as scheduled tribe was found not genuine.
4. The petitioner undisputedly belongs to Gujjar Community and is permanent resident of village Panjera, Tehsil Nalagarh, District Solan, H.P. i.e. a part of the area which was covered under Sub-section (1) of Section 5 of the Punjab Reorganization Act, 1966 and Gujjar Community of that area were not acknowledged as scheduled tribe in view of the Presidential Notification of Constitution (Scheduled Tribes) Order 1950, whereas the Gujjar community of Bilaspur (H.P.) was acknowledged as scheduled tribe. It appears, on the application of the petitioner's father, Shri Kadu Ram, submitted on 21.5.1994, he was issued a certificate of scheduled tribe on the same day, i.e. 21.5.1994 by the Sub Divisional Magistrate, Sadar, district Bilaspur, H.P. In reference to such certificate, the petitioner was also issued a certificate of scheduled tribe from district Bilaspur.
5. According to the petitioner the original certificate issued by the Sub Divisional Magistrate, Sadar, district Bilaspur in favour of the petitioner has also not yet been cancelled, whereas, in subsequent inquiry report dated 1.8.1999 a different finding has been given, however, keeping in view the fact that the Gujjar community of village Panjera, Tehsil Nalagarh has since been categorized subsequently and declared as scheduled tribe by the Presidential Notification dated 8th January, 2003 and since the petitioner has already been recommended for one of the posts, therefore, on equity treating the petitioner belonging to scheduled tribe community is declared to be selected for one post of H.P. Administrative Service and the appointment order in favour of the petitioner should be issued accordingly.
6. On the other hand, learned Deputy Advocate General appearing on behalf of the State has submitted that the Presidential order issued in reference to Article 342 of the Constitution regarding scheduled tribe is a final. The President in consultation with the Governor issues a public notification declaring tribes or tribal Communities, or parts of, or groups within tribes or tribal communities in relation to that State the Schedule Tribe. The Court cannot add or subtract anything in the Presidential order. According to learned Deputy Advocate General in view of the following decisions in B. Basavalingappa v. D. Munichinnappa : [1965]1SCR316 ; Bhaiyalal v. Harikishan Singh : [1965]2SCR877 ; Dina v. Narayan Singh (1968) 38 ELR 212 (Scheduled Tribes); Parsram and Anr. v. Shivchand and Ors. : [1969]2SCR997 . Bhaiya Ram Munda v. Anirudh Patar : [1971]1SCR804 ; Srish Kumar Choudhary v. State of Tripura and Ors. : [1990]1SCR576 ; Dr. Virendra Mohan Rai Khangar v. Union of India : AIR1992All147 ; the Court cannot add, modify or subtract in the Presidential order. According to the learned Deputy Advocate General the entries in the Presidential Order have to be taken as final. It is open to the President to declare a caste or sub caste, deemed to be a scheduled tribe or scheduled caste in a particular part of the State and not in any other part.
7. For convenience the provisions of Articles 341 and 342 of the Constitution of India are indicated as below:
341. Scheduled Castes.-(1) The President my with respect to the 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.
(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.
342. 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.
(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.
8. We have heard learned Counsel for the parties and perused the documents. On mere reading of the provisions of Articles 341 and 342 of the Constitution it appears that it is the President who has to declare a particular caste to be categorized as a scheduled caste or scheduled tribe. The fact finding inquiry conducted by the Deputy Commissioner on appreciation of evidences and materials on record during the course of inquiry and fact finding that a particular person does not belong to scheduled tribe has not to be interferred with by any Court. The fact finding arrived at during the course of inquiry in consonance to principle of natural justice has not to be upset by the Court as learned tribunal or the High Court could not act as Court of appeal to appreciate the evidence itself, as has been observed by the Supreme Court in S. Nagarajan v. District Collector, Salem and Ors. : [1997]1SCR220 , that in absence of a Presidential Notification/Order under Articles 341 and 342, a non-ST candidate could not get the status of ST by merely interpolating the documents.
9. Undisputedly the Gujjar community of village Panjera, tehsil Nalagarh, District Solan, H.P. was brought in the category of scheduled tribe by a Presidential Notification issued on 8th January, 2003. During the course of inquiry the petitioner was found to be the permanent resident of village Panjera, Tehsil Nalagarh and not a resident of district Bilaspur at the relevant time. The issuance of Scheduled Tribe Certificate in favour of the petitioner treating him to be resident of Bilaspur was not considered as a genuine certificate. The inquiry report dated 1.8.1999 was conducted by the Additional District Magistrate, Bilaspur is very exhaustive, conducted during the pendency of Original Application before the learned Tribunal which, however, has not yet been challenged.
10. The Supreme Court has observed in Shree Surat Valsad Jilla K.M.G. Parishad v. Union of India and Ors. : AIR2007SC2056 , that the President of India under Article 341 of the Constitution is authorized to issue an appropriate notification thereof. The Constitution (Scheduled Castes) Order, 1950 made in terms of Articles 341 and 342 is exhaustive. List prepared by the President under Article 341(1) and 342 forms one clause of homogenous group. Only one list is to be prepared by the President and if any amendment thereto is to be made, the same shall be done by the Parliament. Even the State has no power to alter the same. In view of the above settled position, we are of the considered view that the petitioner undisputedly belonging to village Panjera, Tehsil Nalgarh, District Solan, H.P. and being a person of Gujjar community was not entitled to get the certificate of scheduled tribe and the same was not to be covered under the Constitution (Scheduled Tribes) Order, 1950 issued by the President of India. As such the claim of the petitioner was rightly rejected by learned tribunal by the impugned order dated 6th January, 2000.
11. The Supreme Court in Shree Surat Valsad Jilla K.M.G. Parishad (supra) has held as under:
4. By reason of the aforementioned provision, the Constitution authorized the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes thereof be deemed to be Scheduled Castes in relation to that State or Union Territory by public notification. Such notification issued under Clause (1) shall not be varied by any subsequent notification as provided by Clause (2) of Article 341 except by the President. As and when States were formed, the President had power to issue notification as for that State such notification would not be a variation of the existing notification, but a fresh notification which could, after its issuance, not be varied by the President. It provides for a composite scheme. The modalities for issuance of public notification under Article 341 have been prescribed to enable the President to exercise his power in relation to a State wherefor consultation with the Governor is required to be done. Scheduled Castes are specified for the purpose of the Constitution. If power can be exercised not only for a caste or a part of group within the caste, in our opinion, it can also include a part of the State.
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7. The question came up for consideration before a Constitution Bench of this Court in E.V. Chinnaiah v. State of A.P., wherein it was held: (SCC p. 409, para 13)'.
13. We will first consider the effect of Article 341 of the Constitution and examine whether the State could, in the guise of providing reservation for the weaker of the weakest, tinker with the Presidential List by subdividing the castes mentioned in the Presidential List into different groups. Article 341 which is found in Para XVI of the Constitution refers to special provisions relating to certain classes which includes the Scheduled Castes. This article provides that the President may with respect to any State or Union Territory 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. This indicates that there can be only one list of Scheduled Castes in regard to a State and that list should include all specified castes, races or tribes or part or groups notified in that Presidential List. Any inclusion or exclusion from the said list can only be done by Parliament under Article 341(2) of the Constitution. In the entire Constitution wherever reference has been made to 'Scheduled Castes' it refers only to the list prepared by the President under Article 341 and there is no reference to any subclassification or division in the said list except, may be, for the limited purpose of Article 330, which refers to reservation of seats for Scheduled Castes in the House of the People, which is not applicable to the facts of this case. It is also clear from Article 341 that except for a limited power of making an exclusion or inclusion in the list by an Act of Parliament there is no provision either to subdivide, subclassify or subgroup these castes which are found in the Presidential List of Scheduled Castes. Therefore, it is clear that the Constitution intended all the castes including the subcastes, races and tribes mentioned in the list to be members of one group for the purposes of the Constitution and this group could not be subdivided for any purpose. A reference to the Constituent Assembly in this regard may be useful at this stage.
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12. Since the impugned order dated 6th January, 2000 passed in O.A. No. 1800 of 1999 by learned Tribunal is under challenge and we are of the considered view that the said order is not to be interfered with, therefore, challenge to the vires of the Constitution (Scheduled Tribes) Order, 1950 indicating the words 'except the territories specified in Sub-section (1) of Section 5 of the Punjab Re-organisation Act, 1966' in clause 1 of Schedule of The Constitution (Scheduled Tribes) Order, 1950 shall not be gone into by this Court as in view of the decision of Shree Surat Valsad Jilla K.M.G. Parishad (supra) of Supreme Court, the validity of Presidential Order has been maintained.
13. In view of the above discussion, there is no merit in this writ petition which is accordingly dismissed.