Tapan Kumar Roy Vs. the Convener, Engineering, Agricultural and Medical Common Entrance Test-87 Andhra Pradesh University, Visakhapatnam and anr. - Court Judgment

Excerpt:
(i) constitution - notification for declaration of caste - articles 15 (4), 16 (4), 19 (1) (c), 19 (1) (d), 330, 332, 341 (1), 342, 366 (24) of constitution of india - 'namsudra' is untouchable caste in hindu society - notification by president declaring 'namsudra' as scheduled caste in state of west bengal - petitioners of west bengal claimed admission in educational institution in andhra pradesh on the basis of 'namsudra' as scheduled caste - scheduled caste is neither inherited by birth nor acquired by effort - power of president - identification by president in relation to particular state with consultation of governor of respective state - held, petitioners are not entitled for admission in andhra pradesh on the basis of 'namsudra' declared as scheduled caste in west bengal. - - as our chequered political and social history failed to ensure the growth of indigenous institutions appropriate for a modern liberal state, the task of sweeping away the medieval social and political remnants of inequality and inhumanity and erecting in their place a modern, liberal and egalitarian state is jassumed by the constitution itself. the president might have well concluded that in andhra the society is more egalitarian and more tolerant than orthodox and that therefore, such a notification need not be made. of course, the president might very well include many castes like dhobis in andhra among the scheduled castes because a dhobicaste is no different for several social purposes from a harijan in andhra. the position taken by the first letter is clearly untenable. ..which shall for the purpose of this constitution' in intractable and clearly indicates not merely the extent of the presidential power to notify but also shows that the state lists drawn by the president are exhaustive. they like all hindus inherited their caste by birth and will retain it probably even after death. 11. the argument of the petitioners that such a view might offend the petitioners' fundamental rights to move freely throughout the territory of india (article 19(1)) and to reside and settle in any part of the territory of india (article 19(1)) is clearly without substance. it is one relating to their constitutional status which can only be enjoyed by and under a presidential notification and which cannot be carried by them outside the notified state. the question is whether to be stay put in one's home state and enjoy those constitutional benefits attached to the status of a scheduled caste or a scheduled tribe or to renounce those props and stand on one's own legs and light the battle of life from an unequal position moving throughout the country.order1. the tragic partition of india had uprooted millions of innocent indians who were in no way guilty of the crime of vivisection of the country. in that holocaust, women were raped, children were burnt and millions had perished. communal frenzy drove away sanity. many of the survivors fled their ancient homes. the respective parents of the petitioners in writ petition nos. 17127 of 1987 and 17254 of 1987 were two among , those millions caught in that maelstrom of communal passions. they had thus been driven out of east bengal. they migrated first to the state of west bengal. later they moved over to kagaznagar of adilabad district of andhra pradesh. there they started their lives of toil a new and set up their families and brought up their children including the two petitioners. these two petitioners were born to their respective parents in kagaznagar of adilabad district. the parents are hindus and belong to a caste called namasudra. a namasudra is an untouchable in the hindu, social hierarchy and is, for the liberating purposes of our constitution, notified by the president of india in relation to the state of west bengal as one of the scheduled castes. there is no choice for a hindu in the matter of belonging to one of the hindu castes. he is impotent even to renounce his caste so long as he is a hindu. a hindu inherits his unshakable caste affiliation from his parents. it is a part of his socio-genetic transmission. thus the two petitioners have become namasudras merely by reason of their birth. because namasudra is a scheduled caste in west bengal, they claim to belong to the category of scheduled castes in the state of andhra pradesh too. on that basis, they claim to be entitled in the matter of admission intothe state educational institutions, to the manyconcessions and priorities and preferenceswhich are granted by the state of andhrapradesh to the scheduled castes. tapankumar roy son of sathyendranath thepetitioner in w. p. no. 17127 of 1987unsuccessfully sought admission into the firstyear ag. b.sc., on the basis that he is ascheduled caste person. similarly in writpetition no. 17254 of 1987, the petitioneramithosh mandal son of anuthosh mandalunsuccessfully sought admission into the firstyear b.e. class on the basis that he is ascheduled caste person.2. namasudras are not many in andhra pradesh. their numbers are insignificant. the president of india had not notified at any time namasudra caste in relation to the state of andhra pradesh as a scheduled caste. in these two writ petitions, the petitioners seek writs of mandamus to compel the state government and its instrumentalities to treat them as scheduled castes and to admit them into the state run educational institutions against the seats reserved by the state government of andhra pradesh for the scheduled castes. in support of their claims, they produced evidence of school certificates of kagaznagar where they had been treated all along as belonging to scheduled castes and also the certificates they presently obtained from the mandal revenue officer of kagaznagar for the specific purpose of present admissions. the petitioners' contention in substance is that a namasudra who is notified as a scheduled caste in relation to west bengal by the president of india will be a namasudra in any other part of india including andhra and will not lose that status merely by reason of his moving out of the state of west bengal and settling down in any other part of india. after all their right to move throughout the territory of india and settle down anywhere in india is guaranteed to them under article 19(1) of the constitution. as their fathers are scheduled castes so they too are scheduled castes.3. these applications are opposed by the state. the contention of the state in substance is that the petitioners' fathers, though namasudras by caste, cannot be considered as belonging to scheduled caste in the state of andhra pradesh because namasudras are not notified by the president of india as a scheduled caste with reference to the stale of andhra pradesh or any part thereof, the petitioners are, therefore, not scheduled castes.4. these are matters of constitutional moment. they raised in substance questions as to what meaning should be given to the words 'scheduled castes' and 'scheduled tribes.' occurring in article 15(4) of our constitution read with article 341(1) and (2) of the constitution.5. our constitution makes a valiant and a most determined attempt to strip the age old stagnant hindu society of its socio-religious inequalities. while it generally bans caste for public purposes, it recognises it for some other purposes. for the purpose of identifying scheduled castes and scheduled tribes, it recognises castes. that is for the constitutional purpose of levelling them up. for this purpose, it made an uneasy compromise between the claims of liberty and equality. i wrote in p. b. vijaykumar v. state of a.p. (1987) 2 andh lt 673 at p. 676 : (air 1987 andh pra 295 at p. 298) that,'.......the indian state is erected on theuncleared debris of a feudal social order. as our chequered political and social history failed to ensure the growth of indigenous institutions appropriate for a modern liberal state, the task of sweeping away the medieval social and political remnants of inequality and inhumanity and erecting in their place a modern, liberal and egalitarian state is jassumed by the constitution itself. many of our fundamental rights attempt to remove those remnants of feudal order.'part xvi of our constitution is one such attempt. the whole of part xvi of our constitution is devoted for launching of this liberating and liberalising mission in relation to scheduled castes and scheduled tribes. there the constitution directs reservation of seats for scheduled castes and scheduled tribes in our legislative bodies (articles 330 and 332). it also directs, the claims of the scheduled castes and scheduled tribes to be taken into consideration in making appointments to services and posts in connection with the affairs of the union or of a state (article 334). article 338 of that part mandates that there shallbea special officer appointed by the president charged with duty to investigate all matters relating to the safeguards provided for the scheduled castes and scheduled tribes under the constitution. these constitutional provisions raise problems of identification. the question of identification of castes as scheduled castes had to be answered before effect could be given to the above beneficent provisions of the constitution. for that purpose, article 341 empowers the president of india to identify the castes, races or tribes or parts of or groups within castes, races or tribes which should be deemed to be scheduled castes for the purpose of the constitution. article 341 reads as follows :'341 (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 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.' 6. article 15(4) was not part of the original constitution. it was added by the constitution first amendment act of 1951. its purpose is more limited than that of article 341. it has no direct concern with special political representation. it only deals with the problem of advancing the interestsof scheduled castes and scheduled tribes and the other backward classes.7. a reading of article 341 of the constitution makes it clear that while caste status is inherited by hindu by his birth, scheduled caste status is neither inherited by birth nor acquired by his effort but it is only thrust upon him by the president. it is primarily for the president to identify those castes, races or tribes which shall be deemed to be scheduled castes for the purposes of the constitution. but such an identification by the president cannot be made on an all ' india basis and his identification will not be valid throughout india. he can identify the scheduled castes only in relation to a particular state. parliament, by law, can only include in that list of castes or exclude from that list of castes so notified by the president as scheduled castes. the conferment of every power in public law carries with it notonly its content but also its limitations. unlimited public powers are unknown to public law. the power conferred on the president to notify the scheduled castes under article 341 is no different. the president can exercise his power of notifying a caste or raceor a tribe as a scheduled caste only if such a caste or tribe objectively exists. for the purpose of the constitution the president cannot create a new caste. secondly the president under article 341 is placed under an obligation to consult with the governor of a particular state with respect to which alone he can notify certain castes as scheduled castes whether such an existing caste can be properly notified as a scheduled caste in relation to that state. it is significant to note from the above that the constitution treats the question of notifying castes by the president as affecting and as relating to a particular state only. it, therefore, mandates consultation with that state. it is meaningless to consult governor of state a on the question whether a particular caste in state b can be properly notified as a scheduled caste in relation to state b. such mechanical consultation cannot be called consultation at all in any relevant sense of the constitution. the constitutional scheme of consultation of a particular governor read with the presidential obligation to notify the scheduled castes in relation to that state (article 341) shows that the constitution envisaged only stale scheduled caste lists. the words 'the president may with respect to any state' and the words 'after consultation with the governor' and 'in relation to that state' occurring in article 341 not only confer powers on the president to notify but also impose limitations on that power of the president to notify the scheduled castes. the language of article 341 thus makes it clear that the presidential notification cannot notify an all india scheduled caste. it can declare a particular caste as a scheduled caste only in relation to a particular state. it follows therefore that there can never be a list of all india scheduled castes under our constitution and that there can only be a state list of scheduled castes notified by the presidentin accordance with the requirements of article 341 of the constitution. the practical and legal consequence of this constitutional provision of article 341 is that a caste which might have been notified by the president in a particular state as a scheduled caste need not necessarily be treated as a scheduled caste in relation to another state with respect to which the president has not made such consultation with the governor nor included that caste in that particular state. the anomaly of a harijan being treated as belonging to a scheduled caste in west bengal and not being treated as a scheduled caste in the andhra pradesh is, therefore, more apparent than constitutional. we know that today a dhobi in rajasthan and uttar pradesh is a scheduled caste while he is not so in andhra. the president might have well concluded that in andhra the society is more egalitarian and more tolerant than orthodox and that therefore, such a notification need not be made. of course, the president might very well include many castes like dhobis in andhra among the scheduled castes because a dhobicaste is no different for several social purposes from a harijan in andhra. but it is for the president to decide. it follows that a namasudra cannot claim to be a scheduled caste in andhra. the two letters of the government of india one dt. 10th june, 1971 and the other dt. 18th nov. 1982 and relied upon by the petitioners to say that the migrating scheduled castes do not cease to be scheduled castes in the states they migrated to, in my opinion, provide it wholly wrong guide on article 341(1) of the constitution. the first is a letter from the under-secretary to the government of india addressed to the chief secretary, government of andhra pradesh. it deals with the question of status of the migrated scheduled castes in the states to where they have migrated. in substance it says that a scheduled caste status under the constitution is an all india status and on that basis it says a dhobi from uttar pradesh going to maharashtra should be treated as a scheduled caste while a dhobi from maharashtra settling in uttar pradesh will not be a scheduled caste. it also draws a distinction between arts. 330 and 332 on the one hand and article 15(4) and article 16(4) on the other. the letter says that in the case of articles 330 and 332, continued residence of the migrant is necessary while in the case of articles 15(4) and 16(4), no such residence is necessary.8. the letter of government of india dt. 18th nov. 1982 is a communication signed by its secretary to the government of india. it deals directly with the question of the status of the children of the transferred central government servants and directs that such children should be entitled to the status of scheduled caste of their parents which they were enjoying in the state from which they are transferred. it is not possible to accept as correct the views contained in either of these two letters as constitutionally valid. of course, there is not much discussion in these letters of the language of article 341 of the constitution nor is there any reasoning in support of the distinction drawn between article 15(4) on the one hand and arts. 330and 332 on the other. in the ultimate analysis it is for the constitutional courts to give an authoritative interpretation to the written word of the constitution, such a power cannot be shared by the courts with any other authority. i have already shown that a presidential notification can be made only in relation to a particular state and that such a notification cannot have any legal efficacy in relation to another state where the presidential notification made in relation to the latter state does not enumerate the particular caste as a scheduled caste. the position taken by the first letter is clearly untenable. equally untenable is the departmental distinctions drawn between article 15(4) and articles 330 and 332. it should be remembered that the word 'scheduled caste' in whichever part of the constitution it occurs is defined to mean by article 366(24) as a caste which is deemded to be a scheduled caste under article 341 of the constitution. under article 341 a caste can only be a scheduled caste where it is notified by the president. it might not have been altogether impossible to disregard this constitutional definition in relation to the word 'scheduled caste' occurring in 'article 15(4) on the basis of the difference in subject and context of that provision. but taking such view by the courts is rendered constitutionally impossible by the language of article 341 of the constitution. that language of article 341 describes the presidential enumeration of scheduled castes as having been made 'for the purposes of this constitution' which means the whole of the constitution including article 15(4). it cannot be said reasonably that the purposes of advancing the cause of the scheduled castes under article 15(4) is outside the purposes of he constitution. for the above reasons i hold that the presidential enumeration under article 341 is exhaustive and, therefore, can either be added to nor subtracted from by any state or any other authority except the parliament of india under clause (2) of article 341 of the constitution. for that reason, i regret to say that the children of central government servants belonging to scheduled castes will not be able to claim the benefits of article 15(4) which are open to them in their parent state in the states to which there parents were transferred unless the presidential notification enumerates them as scheduled caste in the states their parents were transferred to. the result is, no doubt, harsh but in my opinion it is the direct result of the scheme of the constitution. the language of article 341 'the president may.......by public notification specify the castes......which shall for the purpose of this constitution' in intractable and clearly indicates not merely the extent of the presidential power to notify but also shows that the state lists drawn by the president are exhaustive. for all purposes of the constitution, those notified castes are made the only scheduled castes. this constitutional position denies any possible claim that a state may conceivably advance for the purposes of article 15(4) to make an independent enumeration of the scheduled castes in that particular state. of course, it is not impossible to read the language of article 15(4) in isolation as providing for making of a list by the state for the purposes of article 15(4). from that angle, we may observe that the main concern of part xvi of the constitution is to provide for political reservations. that being a matter of fundamental political significance, that matter could not have been intended by the constitution to be dealt with differently by the different units of the union. it is, therefore, legitimate to hold that such a matter called for and was given by the constitution an uniform application. it is arguable that for the purpose and context of article 15(4) the word 'scheduled caste' can be given a meaning so as not to exclude state enumeration. its mission is to level up the weaker sections of society living in a state. there is no need in that context to exclude the local enumeration of weaker sections based on local knowledge of the social conditions. it is, therefore, possible to argue that under article 15(4) the state may be left free to draw its own lists. the definition of the word 'scheduled caste' in article 366(24) which is always subject to context may be discounted from this view point to that extent. but i find that there exists an insuperable difficulty in the way of adopting this view of article 15(4) in the language of article 341 itself which in unambiguous terms speaks of the presidential notification as being made 'for the purposes of this constitution.' article 15(4) is one of those purposes of the constitution, it, therefore, becomes difficult for me to hold that the states can prepare their own lists under article 15(4). in other words, both in the matter of inclusion and exclusion and both for federal and state purposes, the list of scheduled castes notified by the president will be exhaustive. such lists can neither be added to nor subtracted from except by the parliament under clause (2) of article 341.9. it follows from the above that the petitioners who belong to namasudra caste cannot be considered as belonging to scheduled castes in relation to state of andhra pradesh. the presidential notification made under article 341 of the constitution in relation to andhra pradesh does not say so. the presidential notification in relation to west bengal helps them to claim to be scheduled castes in relation to west bengal only and not beyond. but that will not help them to be scheduled castes in andhra. of course, in andhra they will still continue to be namasudras. that is because of hindu law. but we are not concerned with their caste but only with their scheduled caste status. they like all hindus inherited their caste by birth and will retain it probably even after death. but a scheduled caste person is neither born nor that status is acquired by him. it is only thrust upon him by the presidential notification. but conferment of such constitutional status by the president or parliament is essential for him for enjoying the benefits under article 15(4) and for all other constitutional purposes. it follows that no person whose caste is not notified as scheduled caste by the president in relation to the state of andhra pradesh can claim to belong to scheduled caste nor will he be entitled to the concessionary benefits under article 15(4) in relation to the state of andhra pradesh. the degrading social status and the stigma of untouchability may not leave him even while he is in andhra. but such conditions are only necessary conditions for the president to confer status of a scheduled caste on him. but those conditions by themselves will not be sufficient to legally enable him to claim the status of scheduled caste in andhra. this position is made abundantly clear by the clear distinction the constitution draws between scheduled caste thrust by the presidential notification and caste a hindu inherits by his birth.10. from the above it follows that the two petitioners in these two writ petitions constitutionally speaking cannot be called as scheduled caste candidates in andhra pradesh. their derivative claim to the enjoyment of those benefits attached to that status cannot be accepted.11. the argument of the petitioners that such a view might offend the petitioners' fundamental rights to move freely throughout the territory of india (article 19(1)) and to reside and settle in any part of the territory of india (article 19(1)) is clearly without substance. nor article 21 has any application here. the petitioners are even today free to exercise those rights throughout india unhindered by any state authority. the lives of the petitioners or their personal liberty are in nowise denied or deprived by the presidential refusal to recognise them as scheduled castes in andhra. the question is not at all whether they have those basic constitutional rights nor is whether a price is being exacted from them for the exercise of those rights. the real question is wholly a different one. it is one relating to their constitutional status which can only be enjoyed by and under a presidential notification and which cannot be carried by them outside the notified state. this reasoning follows from the legal position that the status of belonging to a scheduled caste is wholly constitutive by the presidential notification and not declaratory in character. in the absence of presidential notification the scheduled caste status cannot be created by any authority. the president can constitutionally create that status limited to one state only. under the constitution, there is no scope for enjoying such status universally throughout the territory of india without reference to the territorial limitations imposed by the presidential notification. the contrary argument is beset with the constitutional pitfall of this court possessing power to mandamus the president to include or exclude a caste as a scheduled caste in a state list. i agree that this view will result in preventing the children of the central government servants whose parents are liable to be transferred throughout india from enjoying the benefits of scheduled caste status. writ petition no. 15193 of 1987 which is heard along with the above two writ petitions presents that picture in all its grimness. there the petitioner's father comes from bihar and belongs to a tribe called 'kharia'. kharia tribe was notified by the president under article 342 of the constitution as one of the scheduled tribes in relation to the state of bihar. it was on that basis the petitioner's father was recruited in the scheduled tribe quota as regional officer in the ministry of education, government of india, central hindi directorate. he worked for some time in calcutta and was later transferred to hyderabad. his son the petitioner had his high school and collegiate education in hyderabad. he is now seeking admission into the m.b.b.s. course of the government medical college on the basis that he is a scheduled tribe candidate. as that claim has been rejected by the authorities on the ground that the kharia tribe was not notified by the president as a scheduled tribe in relation to andhra pradesh he has filed the present writ petition. i regret to say that what i said above regarding the scope and meaning of article 341 in relation to scheduled castes would equally apply to article 342 of the constitution which deals with the problem of scheduled tribes. article 342 of the constitution which deals with the problem of scheduled tribes to the same extent and in the same manner as article 341 deals with the problem of scheduled castes reads as follows :'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 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.' in the matter of its interpretation and ascertainment of its scope what 1 said of article 341 applies mutat is mutandis to article 342. under article 342 a scheduled tribe is not born but is only constituted by the presidential notification made in relation to a particular state, there is no all india scheduled tribe. the president has notified the khaira tribe as a scheduled tribe in bihar but not in andhra pradesh. it follows that the petitioner's claim to be admitted into the m.b.b.s. course to the andhra pradesh state medical colleges on the basis that he is a scheduled tribe cannot be accepted.12. there is least doubt that the emerging situation points to a grim and poignant picture of a person recruited in his home state on the basis of his status of scheduled tribe or scheduled caste being denied that status and those benefits attached to that status in another state in relation to which that tribe or community is not notified by the president as a scheduled tribe or scheduled caste as the case may be. this would be the position not only in the case of the central government servants but also in all those cases where the citizens are employed on all india basis either in private or, public companies. a newspaper correspondent, a corporate employee, a member of income-tax appellate tribunal, a bank officer, may all have to face this problem sooner or later. the question is whether to be stay put in one's home state and enjoy those constitutional benefits attached to the status of a scheduled caste or a scheduled tribe or to renounce those props and stand on one's own legs and light the battle of life from an unequal position moving throughout the country. there is no middle path. there is no doubt that the answers to those questions can only end in a tragedy. the abovementioned two letters of the government of india dt. 10th june, 1971 and 18th nov. 1982, are the determined executive attempts to obviate this situation of inequity. but they are constitutionally impotent to alter the constitutional fate decreed by the clearpetitions dismissed.provisions of the constitution. to the infinite wisdom of the constitution, we must a 11 bow.13. there is no authoritative pronouncement of the supreme court on this particular question. the decisions reported in parsram v. shivchand, : [1969]2scr997 , state of kerala v. n. m. thomas, : (1976)illj376sc , maneka gandhi v. union of india : [1978]2scr621 , charles k. skaria v. c. mathew air 1980 sc 1230 which are cited at the bar are wholly beside the point. the only judgment which has a bearing on this question is the one delivered by a division bench of the orissa high court in k. appa rao v. director, p & t : air1969ori220 . there the writ petitioner was the resident of a district of state of orissa bordering the state of andhra pradesh. he belonged to konda kapu caste, and was appointed as a clerk in posts & telegraphs department and was later promoted as an inspector of post offices on the basis that he belonged to a scheduled tribe. subsequently, he was reverted to his substantive post of clerk on the basis mat konda kapu was notified as a scheduled tribe in the state of orissa. dismissing his writ petition the orissa high court ruled that the petitioner's contention that konda kapu was a scheduled tribe in the neighbouring state of andhra pradesh and that therefore, he should be treated as a scheduled tribe in the state of orissa cannot be accepted. (from a two line commentary given by the air manual to article 341 of the constitution). i find the high court of madhya pradesh in jyothi bhushan v. bodh ram 1974 mplj 565 at p. 566 has taken a similar view in relation to a person belonging to dusadh caste. he migrated from bihar where dusadh caste was notified by the president as belonging to a scheduled caste to madhya pradesh where it was not so notified as a scheduled caste. his contention that the should be treated as a scheduled caste in madhya pradesh was rejected by the high court.14. in the above circumstances, i do not find it possible to accept any of the contentions advanced by the petitioners in any of these three writ petitions. they are accordingly dismissed. no costs. advocate's fees rs. 100/-

Judgment:
ORDER

1. The tragic partition of India had uprooted millions of innocent Indians who were in no way guilty of the Crime of vivisection of the country. In that holocaust, women were raped, children were burnt and millions had perished. Communal frenzy drove away sanity. Many of the survivors fled their ancient homes. The respective parents of the petitioners in Writ Petition Nos. 17127 of 1987 and 17254 of 1987 were two among , those millions caught in that maelstrom of communal passions. They had thus been driven out of East Bengal. They migrated first to the State of West Bengal. Later they moved over to Kagaznagar of Adilabad district of Andhra Pradesh. There they started their lives of toil a new and set up their families and brought up their children including the two petitioners. These two petitioners were born to their respective parents in Kagaznagar of Adilabad district. The parents are Hindus and belong to a caste called Namasudra. A Namasudra is an untouchable in the Hindu, social hierarchy and is, for the liberating purposes of our Constitution, notified by the President of India in relation to the State of West Bengal as one of the Scheduled Castes. There is no choice for a Hindu in the matter of belonging to one of the Hindu castes. He is impotent even to renounce his caste so long as he is a Hindu. A Hindu inherits his unshakable caste affiliation from his parents. It is a part of his socio-genetic transmission. Thus the two petitioners have become Namasudras merely by reason of their birth. Because Namasudra is a Scheduled Caste in West Bengal, they claim to belong to the category of Scheduled Castes in the State of Andhra Pradesh too. On that basis, they claim to be entitled in the matter of admission intothe State educational institutions, to the manyconcessions and priorities and preferenceswhich are granted by the State of AndhraPradesh to the Scheduled Castes. TapanKumar Roy son of Sathyendranath thepetitioner in W. P. No. 17127 of 1987unsuccessfully sought admission into the firstyear Ag. B.Sc., on the basis that he is aScheduled Caste person. Similarly in WritPetition No. 17254 of 1987, the petitionerAmithosh Mandal son of Anuthosh Mandalunsuccessfully sought admission into the firstyear B.E. class on the basis that he is aScheduled Caste person.

2. Namasudras are not many in Andhra Pradesh. Their numbers are insignificant. The President of India had not notified at any time Namasudra caste in relation to the State of Andhra Pradesh as a Scheduled Caste. In these two Writ Petitions, the petitioners seek writs of mandamus to compel the State Government and its instrumentalities to treat them as Scheduled Castes and to admit them into the State run educational institutions against the seats reserved by the State Government of Andhra Pradesh for the Scheduled Castes. In support of their claims, they produced evidence of school certificates of Kagaznagar where they had been treated all along as belonging to Scheduled Castes and also the certificates they presently obtained from the Mandal Revenue Officer of Kagaznagar for the specific purpose of present admissions. The petitioners' contention in substance is that a Namasudra who is notified as a Scheduled Caste in relation to West Bengal by the President of India will be a Namasudra in any other part of India including Andhra and will not lose that status merely by reason of his moving out of the State of West Bengal and settling down in any other part of India. After all their right to move throughout the territory of India and settle down anywhere in India is guaranteed to them under Article 19(1) of the Constitution. As their fathers are Scheduled Castes so they too are Scheduled Castes.

3. These applications are opposed by the State. The contention of the State in substance is that the petitioners' fathers, though Namasudras by caste, cannot be considered as belonging to Scheduled Caste in the State of Andhra Pradesh because Namasudras are not notified by the President of India as a Scheduled Caste with reference to the Stale of Andhra Pradesh or any part thereof, The petitioners are, therefore, not Scheduled Castes.

4. These are matters of constitutional moment. They raised in substance questions as to what meaning should be given to the words 'Scheduled Castes' and 'Scheduled Tribes.' occurring in Article 15(4) of our Constitution read with Article 341(1) and (2) of the Constitution.

5. Our Constitution makes a valiant and a most determined attempt to strip the age old stagnant Hindu society of its socio-religious inequalities. While it generally bans caste for public purposes, it recognises it for some other purposes. For the purpose of identifying Scheduled Castes and Scheduled Tribes, it recognises castes. That is for the constitutional purpose of levelling them up. For this purpose, it made an uneasy compromise between the claims of liberty and equality. I wrote in P. B. Vijaykumar v. State of A.P. (1987) 2 Andh LT 673 at p. 676 : (AIR 1987 Andh Pra 295 at p. 298) that,

'.......The Indian State is erected on theuncleared debris of a feudal social order. As our chequered political and social history failed to ensure the growth of indigenous institutions appropriate for a modern liberal State, the task of sweeping away the medieval social and political remnants of inequality and inhumanity and erecting in their place a modern, liberal and egalitarian State is jassumed by the Constitution itself. Many of our fundamental rights attempt to remove those remnants of feudal order.'

Part XVI of our Constitution is one such attempt. The whole of part XVI of our Constitution is devoted for launching of this liberating and liberalising mission in relation to Scheduled Castes and Scheduled Tribes. There the Constitution directs reservation of seats for Scheduled Castes and Scheduled Tribes in our legislative bodies (Articles 330 and 332). It also directs, the claims of the Scheduled Castes and Scheduled Tribes to be taken into consideration in making appointments to services and posts in connection with the affairs of the Union or of a State (Article 334). Article 338 of that Part mandates that there shallbea Special Officer appointed by the President charged with duty to investigate all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under the Constitution. These constitutional provisions raise problems of identification. The question of identification of castes as Scheduled Castes had to be answered before effect could be given to the above beneficent provisions of the Constitution. For that purpose, Article 341 empowers the President of India to identify the castes, races or tribes or parts of or groups within castes, races or tribes which should be deemed to be Scheduled Castes for the purpose of the Constitution. Article 341 reads as follows :

'341 (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 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.'

6. Article 15(4) was not part of the original Constitution. It was added by the Constitution First Amendment Act of 1951. Its purpose is more limited than that of Article 341. It has no direct concern with special political representation. It only deals with the problem of advancing the interestsof Scheduled Castes and Scheduled Tribes and the other backward classes.

7. A reading of Article 341 of the Constitution makes it clear that while caste status is inherited by Hindu by his birth, Scheduled Caste status is neither inherited by birth nor acquired by his effort but it is only thrust upon him by the President. It is primarily for the President to identify those castes, races or tribes which shall be deemed to be Scheduled Castes for the purposes of the Constitution. But such an identification by the President cannot be made on an All ' India basis and his identification will not be valid throughout India. He can identify the Scheduled Castes only in relation to a particular State. Parliament, by law, can only include in that list of castes or exclude from that list of castes so notified by the President as Scheduled Castes. The conferment of every power in public law carries with it notonly its content but also its limitations. Unlimited public powers are unknown to public law. The power conferred on the President to notify the Scheduled Castes under Article 341 is no different. The President can exercise his power of notifying a caste or raceor a tribe as a Scheduled Caste only if such a caste or tribe objectively exists. For the purpose of the Constitution the President cannot create a new caste. Secondly the President under Article 341 is placed under an obligation to consult with the Governor of a particular State with respect to which alone he can notify certain castes as Scheduled Castes whether such an existing caste can be properly notified as a Scheduled Caste in relation to that State. It is significant to note from the above that the Constitution treats the question of notifying castes by the President as affecting and as relating to a particular State only. It, therefore, mandates consultation with that State. It is meaningless to consult Governor of State A on the question whether a particular caste in State B can be properly notified as a Scheduled Caste in relation to State B. Such mechanical consultation cannot be called consultation at all in any relevant sense of the Constitution. The constitutional scheme of consultation of a particular Governor read with the Presidential obligation to notify the Scheduled Castes in relation to that State (Article 341) shows that the Constitution envisaged only Stale Scheduled Caste Lists. The words 'The President may with respect to any State' and the words 'after consultation with the Governor' and 'in relation to that State' occurring in Article 341 not only confer powers on the President to notify but also impose limitations on that power of the President to notify the Scheduled Castes. The language of Article 341 thus makes it clear that the Presidential notification cannot notify an All India Scheduled Caste. It can declare a particular caste as a Scheduled Caste only in relation to a particular State. It follows therefore that there can never be a list of All India Scheduled Castes under our Constitution and that there can only be a State List of Scheduled Castes notified by the Presidentin accordance with the requirements of Article 341 of the Constitution. The practical and legal consequence of this constitutional provision of Article 341 is that a caste which might have been notified by the President in a particular State as a Scheduled Caste need not necessarily be treated as a Scheduled Caste in relation to another State with respect to which the President has not made such consultation with the Governor nor included that caste in that particular State. The anomaly of a Harijan being treated as belonging to a Scheduled Caste in West Bengal and not being treated as a Scheduled Caste in the Andhra Pradesh is, therefore, more apparent than constitutional. We know that today a Dhobi in Rajasthan and Uttar Pradesh is a Scheduled Caste while he is not so in Andhra. The President might have well concluded that in Andhra the society is more egalitarian and more tolerant than orthodox and that therefore, such a notification need not be made. Of course, the President might very well include many castes like Dhobis in Andhra among the Scheduled Castes because a Dhobicaste is no different for several social purposes from a Harijan in Andhra. But it is for the President to decide. It follows that a Namasudra cannot claim to be a Scheduled Caste in Andhra. The two letters of the Government of India one dt. 10th June, 1971 and the other dt. 18th Nov. 1982 and relied upon by the petitioners to say that the migrating Scheduled Castes do not cease to be Scheduled Castes in the States they migrated to, in my opinion, provide it wholly wrong guide on Article 341(1) of the Constitution. The first is a letter from the Under-Secretary to the Government of India addressed to the Chief Secretary, Government of Andhra Pradesh. It deals with the question of status of the migrated Scheduled Castes in the States to where they have migrated. In substance it says that a Scheduled Caste status under the Constitution is an All India status and on that basis it says a Dhobi from Uttar Pradesh going to Maharashtra should be treated as a Scheduled Caste while a Dhobi from Maharashtra settling in Uttar Pradesh will not be a Scheduled Caste. It also draws a distinction between Arts. 330 and 332 on the one hand and Article 15(4) and Article 16(4) on the other. The letter says that in the case of Articles 330 and 332, continued residence of the migrant is necessary while in the case of Articles 15(4) and 16(4), no such residence is necessary.

8. The letter of Government of India dt. 18th Nov. 1982 is a communication signed by its Secretary to the Government of India. It deals directly with the question of the status of the children of the transferred Central Government servants and directs that such children should be entitled to the status of Scheduled Caste of their parents which they were enjoying in the State from which they are transferred. It is not possible to accept as correct the views contained in either of these two letters as constitutionally valid. Of course, there is not much discussion in these letters of the language of Article 341 of the Constitution nor is there any reasoning in support of the distinction drawn between Article 15(4) on the one hand and Arts. 330and 332 on the other. In the ultimate analysis it is for the constitutional courts to give an authoritative interpretation to the written word of the Constitution, Such a power cannot be shared by the courts with any other authority. I have already shown that a Presidential notification can be made only in relation to a particular State and that such a notification cannot have any legal efficacy in relation to another State where the presidential notification made in relation to the latter State does not enumerate the particular caste as a Scheduled Caste. The position taken by the first letter is clearly untenable. Equally untenable is the departmental distinctions drawn between Article 15(4) and Articles 330 and 332. It should be remembered that the word 'Scheduled Caste' in whichever part of the Constitution it occurs is defined to mean by Article 366(24) as a caste which is deemded to be a Scheduled Caste under Article 341 of the Constitution. Under Article 341 a caste can only be a Scheduled Caste where it is notified by the President. It might not have been altogether impossible to disregard this constitutional definition in relation to the word 'Scheduled Caste' occurring in 'Article 15(4) on the basis of the difference in subject and context of that provision. But taking such view by the courts is rendered constitutionally impossible by the language of Article 341 of the Constitution. That language of Article 341 describes the Presidential enumeration of Scheduled Castes as having been made 'for the purposes of this Constitution' which means the whole of the Constitution including Article 15(4). It cannot be said reasonably that the purposes of advancing the cause of the Scheduled Castes under Article 15(4) is outside the purposes of he Constitution. For the above reasons I hold that the Presidential enumeration under Article 341 is exhaustive and, therefore, can either be added to nor subtracted from by any State or any other authority except the Parliament of India under Clause (2) of Article 341 of the Constitution. For that reason, I regret to say that the children of Central Government servants belonging to Scheduled Castes will not be able to claim the benefits of Article 15(4) which are open to them in their parent State in the States to which there parents were transferred unless the Presidential notification enumerates them as Scheduled Caste in the States their parents were transferred to. The result is, no doubt, harsh but in my opinion it is the direct result of the scheme of the Constitution. The language of Article 341 'The President may.......by public notification specify the castes......which shall for the purpose of this Constitution' in intractable and clearly indicates not merely the extent of the Presidential power to notify but also shows that the State lists drawn by the President are exhaustive. For all purposes of the Constitution, those notified castes are made the only Scheduled Castes. This constitutional position denies any possible claim that a State may conceivably advance for the purposes of Article 15(4) to make an independent enumeration of the Scheduled Castes in that particular State. Of course, it is not impossible to read the language of Article 15(4) in isolation as providing for making of a list by the State for the purposes of Article 15(4). From that angle, we may observe that the main concern of Part XVI of the Constitution is to provide for political reservations. That being a matter of fundamental political significance, that matter could not have been intended by the Constitution to be dealt with differently by the different units of the Union. It is, therefore, legitimate to hold that such a matter called for and was given by the Constitution an uniform application. It is arguable that for the purpose and context of Article 15(4) the word 'Scheduled Caste' can be given a meaning so as not to exclude State enumeration. Its mission is to level up the weaker sections of society living in a State. There is no need in that context to exclude the local enumeration of weaker sections based on local knowledge of the social conditions. It is, therefore, possible to argue that under Article 15(4) the State may be left free to draw its own lists. The definition of the word 'Scheduled Caste' in Article 366(24) which is always subject to context may be discounted from this view point to that extent. But I find that there exists an insuperable difficulty in the way of adopting this view of Article 15(4) in the language of Article 341 itself which in unambiguous terms speaks of the Presidential notification as being made 'for the purposes of this Constitution.' Article 15(4) is one of those purposes of the Constitution, It, therefore, becomes difficult for me to hold that the States can prepare their own lists under Article 15(4). In other words, both in the matter of inclusion and exclusion and both for Federal and State purposes, the list of Scheduled Castes notified by the President will be exhaustive. Such lists can neither be added to nor subtracted from except by the Parliament under Clause (2) of Article 341.

9. It follows from the above that the petitioners who belong to Namasudra caste cannot be considered as belonging to Scheduled Castes in relation to State of Andhra Pradesh. The Presidential notification made under Article 341 of the Constitution in relation to Andhra Pradesh does not say so. The Presidential notification in relation to West Bengal helps them to claim to be Scheduled Castes in relation to West Bengal only and not beyond. But that will not help them to be Scheduled Castes in Andhra. Of course, in Andhra they will still continue to be Namasudras. That is because of Hindu law. But we are not concerned with their caste but only with their Scheduled Caste status. They like all Hindus inherited their caste by birth and will retain it probably even after death. But a Scheduled Caste person is neither born nor that status is acquired by him. It is only thrust upon him by the Presidential notification. But conferment of such constitutional status by the President or Parliament is essential for him for enjoying the benefits under Article 15(4) and for all other constitutional purposes. It follows that no person whose caste is not notified as Scheduled Caste by the President in relation to the State of Andhra Pradesh can claim to belong to Scheduled Caste nor will he be entitled to the concessionary benefits under Article 15(4) in relation to the State of Andhra Pradesh. The degrading social status and the stigma of untouchability may not leave him even while he is in Andhra. But such conditions are only necessary conditions for the President to confer status of a Scheduled Caste on him. But those conditions by themselves will not be sufficient to legally enable him to claim the status of Scheduled Caste in Andhra. This position is made abundantly clear by the clear distinction the Constitution draws between Scheduled Caste thrust by the Presidential notification and caste a Hindu inherits by his birth.

10. From the above it follows that the two petitioners in these two Writ Petitions constitutionally speaking cannot be called as Scheduled Caste candidates in Andhra Pradesh. Their derivative claim to the enjoyment of those benefits attached to that status cannot be accepted.

11. The argument of the petitioners that such a view might offend the petitioners' fundamental rights to move freely throughout the territory of India (Article 19(1)) and to reside and settle in any part of the territory of India (Article 19(1)) is clearly without substance. Nor Article 21 has any application here. The petitioners are even today free to exercise those rights throughout India unhindered by any State authority. The lives of the petitioners or their personal liberty are in nowise denied or deprived by the Presidential refusal to recognise them as Scheduled Castes in Andhra. The question is not at all whether they have those basic constitutional rights nor is whether a price is being exacted from them for the exercise of those rights. The real question is wholly a different one. It is one relating to their constitutional status which can only be enjoyed by and under a Presidential notification and which cannot be carried by them outside the notified State. This reasoning follows from the legal position that the status of belonging to a Scheduled caste is wholly constitutive by the Presidential notification and not declaratory in character. In the absence of Presidential notification the Scheduled Caste status cannot be created by any authority. The President can constitutionally create that status limited to one State only. Under the Constitution, there is no scope for enjoying such status universally throughout the territory of India without reference to the territorial limitations imposed by the Presidential notification. The contrary argument is beset with the constitutional pitfall of this court possessing power to mandamus the President to include or exclude a caste as a Scheduled Caste in a State List. I agree that this view will result in preventing the children of the Central Government servants whose parents are liable to be transferred throughout India from enjoying the benefits of Scheduled Caste status. Writ Petition No. 15193 of 1987 which is heard along with the above two Writ Petitions presents that picture in all its grimness. There the petitioner's father comes from Bihar and belongs to a tribe called 'Kharia'. Kharia tribe was notified by the President under Article 342 of the Constitution as one of the Scheduled Tribes in relation to the State of Bihar. It was on that basis the petitioner's father was recruited in the Scheduled Tribe quota as Regional Officer in the Ministry of Education, Government of India, Central Hindi Directorate. He worked for some time in Calcutta and was later transferred to Hyderabad. His son the petitioner had his High School and Collegiate education in Hyderabad. He is now seeking admission into the M.B.B.S. Course of the Government Medical College on the basis that he is a Scheduled Tribe candidate. As that claim has been rejected by the authorities on the ground that the Kharia tribe was not notified by the President as a Scheduled Tribe in relation to Andhra Pradesh he has filed the present Writ Petition. I regret to say that what I said above regarding the scope and meaning of Article 341 in relation to Scheduled Castes would equally apply to Article 342 of the Constitution which deals with the problem of Scheduled Tribes. Article 342 of the Constitution which deals with the problem of Scheduled Tribes to the same extent and in the same manner as Article 341 deals with the problem of Scheduled Castes reads as follows :

'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 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.'

In the matter of its interpretation and ascertainment of its scope what 1 said of Article 341 applies mutat is mutandis to Article 342. Under Article 342 a Scheduled Tribe is not born but is only constituted by the Presidential notification made in relation to a particular State, There is no All India Scheduled Tribe. The President has notified the Khaira tribe as a Scheduled Tribe in Bihar but not in Andhra Pradesh. It follows that the petitioner's claim to be admitted into the M.B.B.S. Course to the Andhra Pradesh State Medical Colleges on the basis that he is a Scheduled Tribe cannot be accepted.

12. There is least doubt that the emerging situation points to a grim and poignant picture of a person recruited in his home State on the basis of his status of Scheduled Tribe or Scheduled Caste being denied that status and those benefits attached to that status in another State in relation to which that tribe or community is not notified by the President as a Scheduled Tribe or Scheduled Caste as the case may be. This would be the position not only in the case of the Central Government servants but also in all those cases where the citizens are employed on All India basis either in private or, public companies. A newspaper correspondent, a corporate employee, a member of Income-tax Appellate Tribunal, a bank officer, may all have to face this problem sooner or later. The question is whether to be stay put in one's home State and enjoy those constitutional benefits attached to the status of a Scheduled Caste or a Scheduled Tribe or to renounce those props and stand on one's own legs and light the battle of life from an unequal position moving throughout the country. There is no middle path. There is no doubt that the answers to those questions can only end in a tragedy. The abovementioned two letters of the Government of India dt. 10th June, 1971 and 18th Nov. 1982, are the determined executive attempts to obviate this situation of inequity. But they are constitutionally impotent to alter the constitutional fate decreed by the clearPEtitions dismissed.provisions of the Constitution. To the infinite wisdom of the Constitution, we must a 11 bow.

13. There is no authoritative pronouncement of the Supreme Court on this particular question. The decisions reported in Parsram v. Shivchand, : [1969]2SCR997 , State of Kerala v. N. M. Thomas, : (1976)ILLJ376SC , Maneka Gandhi v. Union of India : [1978]2SCR621 , Charles K. Skaria v. C. Mathew AIR 1980 SC 1230 which are cited at the bar are wholly beside the point. The only judgment which has a bearing on this question is the one delivered by a Division Bench of the Orissa High Court in K. Appa Rao v. Director, P & T : AIR1969Ori220 . There the Writ Petitioner was the resident of a district of State of Orissa bordering the State of Andhra Pradesh. He belonged to Konda Kapu caste, and was appointed as a clerk in Posts & Telegraphs department and was later promoted as an Inspector of Post Offices on the basis that he belonged to a Scheduled Tribe. Subsequently, he was reverted to his substantive post of clerk on the basis mat Konda Kapu was notified as a Scheduled Tribe in the State of Orissa. Dismissing his Writ Petition the Orissa High Court ruled that the petitioner's contention that Konda Kapu was a Scheduled Tribe in the neighbouring State of Andhra Pradesh and that therefore, he should be treated as a Scheduled Tribe in the State of Orissa cannot be accepted. (From a two line commentary given by the AIR Manual to Article 341 of the Constitution). I find the High Court of Madhya Pradesh in Jyothi Bhushan v. Bodh Ram 1974 MPLJ 565 at p. 566 has taken a similar view in relation to a person belonging to Dusadh caste. He migrated from Bihar where Dusadh caste was notified by the President as belonging to a Scheduled Caste to Madhya Pradesh where it was not so notified as a Scheduled Caste. His contention that the should be treated as a Scheduled Caste in Madhya Pradesh was rejected by the High Court.

14. In the above circumstances, I do not find it possible to accept any of the contentions advanced by the petitioners in any of these three writ petitions. They are accordingly dismissed. No costs. Advocate's fees Rs. 100/-